McCrea v. Dist. of Columbia

Decision Date31 March 2021
Docket NumberCivil Action No. 16-cv-0808 (TSC)
PartiesNICOLE RENA MCCREA, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
CourtU.S. District Court — District of Columbia

Plaintiff Nicole McCrea is a former firefighter with the District of Columbia Fire and Emergency Medical Services Department (EMS). McCrea, who is proceeding pro se, alleges that in May 2013, two fellow firefighters sexually assaulted her while she was on duty. After reporting the incident, EMS managers, city employees and mental health professionals allegedly conspired to deny her requests to classify her subsequent behavioral health challenges as job-related injuries and to force her into retirement.

Before the court is a motion to dismiss filed by the District of Columbia, Mayor Muriel Bowser, the D.C. Police and Firefighters' Retirement and Relief Board, as well as D.C. government employees Frieda Cardwell, Travis Chase, Gregory Dean, Michael Donlon, Kenneth Ellerbe, Denise Gardner, Raymond Gretz, Josh Henline, Lela Jones, Alan Noznesky, William Sarvis, and Gitana Stewart-Ponder (collectively, the D.C. Defendants). (ECF No. 79.) For the reasons set forth below, the court will GRANT the motion in part and DENY the motion in part.

A. Factual Background

The background facts alleged in this case are set forth more fully in this court's March 31, 2021, companion Memorandum Opinion. (ECF No. 113.) In sum, as a result of her May 2013 alleged assault, McCrea began experiencing stress, along with other cognitive and physical symptoms, and was placed on medical leave the following month. (SAC ¶¶ 11-13, 15.)1 Sometime later she was diagnosed with acute stress reaction and sought to have her symptoms treated as "performance on duty" (POD) injuries, but her request was denied, and she subsequently filed an administrative appeal. (Id. ¶¶ 15-18, 20.) EMS and the Metropolitan Police Department (MPD) conducted investigations, and McCrea filed internal complaints against her alleged attackers and several supervisors. (Id. ¶¶ 6, 10, 25.)

In January 2014, McCrea's physician approved her request to return to light duty, but she claims EMS instead "forced" her to attend "monitoring sessions" with mental health professionals from Police and Firefighter Associates, LLC (PFC), an entity that contracts with EMS to provide healthcare services. (SAC ¶¶ 33, 35); see Feirson v. District of Columbia, 506 F.3d 1063, 1066 (D.C. Cir. 2007) (discussing PFC associate's relationship with EMS). A PFC psychologist issued a report requiring McCrea to undergo a battery of psychological tests. (SAC ¶¶ 43-45.) As a result of those tests, PFC and EMS medical officials submitted a report to theDistrict of Columbia Police and Firefighters' Retirement and Relief Board (the "Board"), concluding that McCrea suffered from an "unspecified anxiety disorder" that prevented her from returning to "performance of full duty," and recommending involuntary non-POD disability retirement. (SAC ¶ 59; SAC, Attachment D, 4, 7-8.) McCrea appealed the recommendation and repeatedly sought permission to return to work with "reasonable accommodations" as set forth by her treating physicians, but EMS required that she return to PFC for evaluation before deciding on her request. (SAC ¶¶ 75, 81-83.) Although she signed a waiver allowing PFC to obtain her personal medical information, McCrea later changed her mind and refused to allow her treating physicians to answer PFC's questions, arguing that the inquiries violated the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA). (Id. ¶¶ 83-85)

After several hearings, the Board ordered McCrea to direct her treating physicians to provide the requested information, but she refused, and the Board ultimately ordered McCrea's involuntary retirement due to non-POD disability. (Id. ¶¶ 92, 97-98, 108.) The Board concluded that McCrea's "paranoia and distrust is so pervasive" that she "could no longer work effectively with a team," thereby posing "a risk to herself and to the public" because she could not perform the "full duties of a firefighter." McCrea v. D.C. Police & Firefighters' Ret. & Relief Bd., 199 A.3d 208, 211 (D.C. 2019), cert. denied, 140 S. Ct. 85 (2019). McCrea unsuccessfully challenged the Board's decision in the District of Columbia Court of Appeals and the United States Supreme Court. Id.

In this lawsuit, McCrea challenges the Board's decision to deny her accommodation requests, classify her ailments as non-POD injuries, and force her to retire. In so doing, she challenges the legality of actions taken by the Board, EMS employees, numerous other D.C.employees, PFC, the Mayor and the D.C. Council—all of whom she contends conspired against her. This opinion address only those claims asserted against the Board, the Mayor, EMS and the individual D.C. employees.2

B. Procedural Background

This court repeatedly warned McCrea that her Complaint was deficient because she failed to identify which of her claims were asserted against which Defendants and the actions each Defendant allegedly took in violation of the law. (See ECF No. 10.) McCrea's SAC is still no model of clarity or brevity at fifty-seven pages, including approximately 170 numbered and lettered paragraphs. Although it contains a "claim for relief" section, roughly twenty-six federal and state claims are scattered throughout. Moreover, despite numerous orders from this court specifically reminding her of the deficiencies in her original Complaint, (ECF Nos. 10, 66; ECF No. 61, Tr. 4, 7, 16), McCrea largely fails to identify which claims she asserts against which of the approximately twenty-seven Defendants. (See SAC COA pp. 46-56.)

After the D.C. Defendants filed the current motion to dismiss, this court advised McCrea that her failure to respond to the D.C. Defendants' arguments might result in the court treating the arguments as conceded. (ECF No. 80); see LCvR 7(b). While her response to the motion is rambling, McCrea does raise several arguments and attempts to clarify which claims she is asserting against each Defendant. While the Defendants contend that McCrea cannot amend her complaint by way of responsive brief, this court has an obligation to consider the SAC "in light of all filings, including filings responsive to a motion to dismiss." See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015); Schnitzler v. United States, 761 F.3d 33, 38(D.C. Cir. 2014) (noting "the district court's obligation to construe a pro se plaintiff's filings liberally, and to consider his filings as a whole before dismissing a complaint"). Accordingly, the court has taken into consideration McCrea's Motion for Relief from Judgment, which she cites in response to Defendants' motion to dismiss. (See ECF No. 51, Mot. for Relief from J.)


A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim tests the legal sufficiency of a complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). "To 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible when the facts asserted allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 556 U.S. at 678. McCrea's factual allegations need not be "detailed," but "the Federal Rules demand more than 'an unadorned, the-defendant-unlawfully-harmed-me accusation.'" McNair v. District of Columbia, 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (quoting Twombly, 550 U.S. at 570).

Pro se complaints, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nonetheless, a pro se plaintiff must still "plead 'factual matter' that permits the court to infer more than the mere possibility of misconduct." Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at 679). Pursuant to Fed. R. Civ. P 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a), so thatthe defendant receives "fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citation and alterations omitted).

A. Official vs. Individual Capacity Claims

Because claims against the D.C. Defendants in their official capacities are equivalent to claims against the municipality, McCrea does not object to dismissal of all claims asserted against the defendants in their official capacities. (See ECF No. 98, Pls. Resp. at 8-9.) The court will therefore address the official capacity claims against the District, as well as the individual capacity claims against each D.C. Defendant.

B. Claims against D.C. and Claims Against Individual Defendants in Their Official Capacities:

1. D. C. Police and Firefighter's Retirement and Relief Board and McCrea's state law claims

On February 12, 2015, the Board held a third hearing at which it considered the recommendation to involuntarily retire McCrea due to non-performance POD disability. (SAC ¶¶ 93-94; SAC, Attachment E 14-15.) PFC's Dr. Gloria Morote testified regarding McCrea's condition, and McCrea challenged those assessments. (See SAC ¶ 99; see SAC, Attachment E 14-15.) McCrea also "urged the Board to adopt the conclusions of her treating psychologist . . . that Ms. McCrea suffered from Post-Traumatic Stress Disorder, was fit to return to work on a limited-duty status, and should be reinstated." McCrea v. D.C. Police & Firefighters' Ret. & Relief Bd., 199 A.3d 208, 211 (D.C. 2019), cert. denied, ...

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