McGinnis v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
BRANDY MCGINNIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1254 (EGS)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
_______________________________)

MEMORANDUM OPINION

Brandy McGinnis brings this action against the District of

Columbia (“the District”) and four employees of the Metropolitan

Police Department (“the MPD”). Ms. McGinnis claims that her

constitutionally protected liberty interest was violated when

she was falsely accused of having lied on her application to the

MPD and terminated from employment. Ms. McGinnis also brings

claims for intentional infliction of emotional distress and

defamation. Pending before the Court is defendants’ motion to

dismiss plaintiff’s liberty-interest claims. Upon consideration

of the motion, the response and reply thereto, the applicable

law, and the entire record, the Court DENIES defendants’ motion.

I. Background

A. Ms. McGinnis Becomes a Police Officer in Florida.

Ms. McGinnis is a former police officer with the Aventura

Police Department in Aventura, Florida. See First Am. Compl.,
ECF No. 10 ¶ 2. She was “a well-respected and decorated police

officer” during her time in Aventura, and “received several

awards, promotions, and recognitions” there. Id. ¶¶ 2, 26.

Prior to becoming a police officer in Aventura, Ms. McGinnis

attended the Miami-Dade School of Justice for training. See id.

¶ 3. During training, Ms. McGinnis “discovered that she has a

medical condition involving a severe allergy to” pepper spray

(which is also known as oleoresin capsicum or “OC” spray). Id.

¶¶ 3, 27. This arose when Ms. McGinnis “suffered an unusually

harsh reaction to [OC] spray.” Id. ¶ 28. Ms. McGinnis had been

“sprayed directly in the eyes,” and she “suffered permanent

damage to her right eye which requires her to wear eyeglasses at

night and while reading.” Id. ¶¶ 3–4. She was ordered by a

supervisor to seek medical treatment and was ultimately

diagnosed with “both an allergy and a hypersensitivity to OC

spray.” Id. ¶¶ 28–29. This allergy “does not prevent her from

carrying or even using OC spray,” so long as she “avoid[s] a

direct spray to the eyes.” Id. ¶ 30. Accordingly, the incident

had no effect on her training, and she graduated successfully.

See id. ¶ 4.

B. Ms. McGinnis Applies to Become a Police Officer in the
District of Columbia.

On December 5, 2011, Ms. McGinnis filled out an application

for employment with the MPD. See id. ¶ 34. On this application,

2
Ms. McGinnis “disclosed the OC spray allergy, but noted that she

is certified to use and carry OC spray.” Id. On December 14,

2011, she interviewed with a background investigator. See id. ¶

35. Ms. McGinnis informed the investigator of her allergy and he

“indicated that this would not be a problem.” Id.

The next step in the application process was a physical

examination, which Ms. McGinnis took on January 17, 2012. See

id. ¶ 36. During the examination, she completed “a medical

history form that inquired about drug and sinus allergies, but

not food or other types of allergies,” checked a box which

indicated that she had an eye injury, and “in the space provided

. . . to explain . . . disclosed that she suffered an eye injury

from OC spray in 2007.” Id. During the physical examination, Ms.

McGinnis also informed the doctor “that she had an allergy to OC

spray . . . that there was no specific place for her to make the

OC spray allergy disclosure on the medical history form, but

that she disclosed the eye injury she suffered [as a result of

OC spray].” Id. ¶ 37. The doctor informed her that “this would

not be a problem since she disclosed the allergy to [the

investigator] and was already certified,” and indicated that “he

would make a note of it in Ms. McGinnis’s file.” Id.

C. Ms. McGinnis Begins Training at the MPD Academy.

Ms. McGinnis was hired by the MPD on January 25, 2012. See id.

¶ 38. On January 31, 2012, she began training at the MPD Academy

3
“where she immediately excelled and was made Class Leader on the

second day of training.” Id. ¶ 5. Her allergy was discussed soon

after training began, when Ms. McGinnis “advised [Sergeant]

Young and Class Officer Kelwin Ford . . . that she was allergic

to OC spray.” Id. ¶ 41. When Class Officer Ford expressed his

belief that everyone is allergic to OC spray, Ms. McGinnis

explained that “although everyone suffers irritation from OC

spray, people with an allergy suffer much more significant and

longer-lasting effects following a direct spray to the eyes.”

Id. Class Officer Ford indicated “that they would deal with the

issue when the time came for OC spray training.” Id.

Ms. McGinnis reminded Sergeant Young of her OC spray allergy

in May 2012, and again in June 2012, at which point Sergeant

Young told her “to get something in writing.” Id. ¶¶ 43–44.

Accordingly, on July 17, 2012, Ms. McGinnis provided him a

letter from Major William Washa of the Aventura Police

Department, which indicated that Major Washa had witnessed Ms.

McGinnis’s reaction to OC spray. See id. ¶ 45. Sergeant Young

said that he would give the letter to the OC spray instructor,

Lieutenant Ashley Rosenthal, and “advised that it should not be

a problem.” Id.

Ms. McGinnis alleges that she expected to participate fully in

the MPD’s OC spray training because “according to the other MPD

officers who were certified to conduct the . . . training . . .

4
they were . . . trained . . . to spray recruits across the

forehead rather than directly in the eyes.” Id. ¶ 47. Ms.

McGinnis alleges that Lieutenant Rosenthal was also trained to

spray across the forehead, “but because MPD apparently lacks a

clear policy for OC spray training and because Lt. Rosenthal

evidently believes this method is not effective enough, Lt.

Rosenthal has implemented her own custom . . . of spraying

recruits . . . across the eyes.” Id. ¶ 48.

D. Ms. McGinnis is Placed on Limited Duty.

On July 20, 2012, Ms. McGinnis was told to go to the medical

clinic to be exempted from OC spray training. See id. ¶ 49. Ms.

McGinnis protested “that she was not asking to be exempt, she

was just requesting that she not be sprayed directly in the

eyes,” id., but Lieutenant Rosenthal insisted she meet with an

MPD doctor. See id. ¶ 50. That doctor “placed Ms. McGinnis on

limited duty and advised that [she] would need to see an allergy

specialist.” Id. When Ms. McGinnis next reported to the MPD

Academy, two class officers “told her to remove her uniform and

put on civilian attire because she was on limited duty.” Id. ¶

53. Ms. McGinnis’s responsibilities as Class Leader were also

reassigned. See id. Later, Ms. McGinnis attended her appointment

with the allergy specialist and the doctor agreed to provide the

MPD with a letter “indicating that Ms. McGinnis has an ‘extra

sensitivity to pepper spray.’” Id. ¶¶ 55–56.

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 The following week, Ms. McGinnis went to the MPD clinic as

directed, and “was advised that she could not be exempted from

the OC spray training.” Id. ¶ 57. Her doctor called the Medical

Services Director, Gregory Stroud, “advised Ms. McGinnis that

she was still on limited duty,” and directed Ms. McGinnis to

report back to the clinic on August 16, 2012. See id.

Ms. McGinnis continued to report to the Academy. On August 3,

2012, she encountered Inspector Alisa Petty, the individual in

command of the Academy, who asked her why she was wearing

civilian clothing. See id. ¶ 60. After Ms. McGinnis explained,

Inspector Petty “indicated this was the first she had heard of

the matter.” Id. Five days later, when Ms. McGinnis’s class

underwent OC spray training—and were sprayed “directly across

the eyes,” id. ¶ 62—Inspector Petty advised Ms. McGinnis that

“she was ‘not doomed, just delayed.’” Id. ¶ 63. Although Ms.

McGinnis was permitted to be present during the OC spray

training, Lieutenant Rosenthal later told her to leave the area

“due to her allergy.” See id. ¶ 64.

Over the next week, Ms. McGinnis continued to participate in

training, had her photograph taken to be used in the graduation

program, and took her final written exam, which she “passed with

an 85%, one of the highest scores in the class.” Id. ¶¶ 65–68.

On August 16, 2012, she attended an appointment at the MPD

clinic, was “advised . . . that she would remain on limited

6
duty,” and was given additional documents for her allergy

specialist to complete, including a request “to clarify whether

Ms. McGinnis has an allergy to OC spray” and a request for a

determination “whether Ms. McGinnis is ‘capable of performing

the full range of duties required of a police officer.’” Id. ¶

70. Ms. McGinnis then spoke with Medical Services Director

Stroud, who informed her “that all officers are required to be

OC spray certified” and “that, had another MPD officer not

called him on Ms. McGinnis’s behalf, he would have fired her

already.” Id. ¶ 71. Director Stroud “further advised that once

Ms. McGinnis returned to full duty, she should ‘suck it up’ and

take the direct spray across the eyes.” Id. ¶ 72.

E. Ms. McGinnis is Terminated from Employment with the MPD.

On August 17, 2012, Sergeants Young and Butler drove Ms.

McGinnis to the MPD headquarters. See id. ¶ 75. Ms. McGinnis

asked Sergeant Young if she was being fired and he said that she

was; when she asked why, Sergeant Young indicated that he did

not know. See id. Upon arrival, Sergeant George Bernard gave Ms.

McGinnis a letter and asked her “if she knew why she was being

terminated.” Id. ¶¶ 76–77. When Ms. McGinnis responded that she

did not, Sergeant Bernard said that it was “because she lied to

the department about a medical condition.” Id. ¶ 77. The MPD,

Sergeant Bernard indicated, “was claiming it never knew about

her condition.” Id. ¶ 78.

7
 Sergeant Bernard exited the room and left behind paperwork

that Sergeants Young and Butler began to read. See id. ¶ 80. Ms.

McGinnis also read the materials, which included “the medical

history form on which Ms. McGinnis disclosed her 2007 OC spray

injury” as well as an August 14, 2012 memorandum from the MPD’s

Director of Human Resources, Diana Haines-Walton, to the Chief

of Police (“the Haines-Walton Memo”). See id. ¶ 81. The Memo

stated that Ms. McGinnis: (1) “‘failed to disclose her severe

allergy to OC spray during the recruitment process’”; (2)

“‘deliberately and consciously made false statements to the

Department during the recruitment process’”; (3) “‘blatant[ly]

fail[ed] to truthfully and completely disclose information

during the recruitment process’”; (4) “did not disclose the

allergy during her physical examination”; and (5) “‘answered in

the negative’ on two medical certifications indicating that she

did not have any allergy to OC spray.” Id. ¶ 82 (alterations in

original). In addition to Sergeants Young and Butler, Ms.

McGinnis alleges that “[o]thers in the MPD and at the Academy

have become aware of the defamatory rationale for [her]

termination despite their having no legitimate business-related

reason to know” and that “[t]he defamatory Haines-Walton

Memorandum remains in [her] personnel file which is potentially

available to prospective employers or other government

officials.” Id. ¶¶ 102–03.

8
 The full story of Ms. McGinnis’s termination remains unclear,

but she alleges that defendants Rosenthal, Petty, Stroud, and

Haines-Walton “conspired to terminate [her] under a false and

defamatory pretext” and that they “ignored clear evidence that

Ms. McGinnis was being truthful about her prior disclosures of

her medical condition.” Id. ¶¶ 93, 95. Ms. Haines-Walton

authored the allegedly defamatory memo, while defendants

Rosenthal, Petty, and Stroud allegedly “encouraged the District

to terminate [her] based on this defamatory pretext.” Id. ¶¶ 11,

81–82.

Ms. McGinnis was not provided with notice of the charges or an

opportunity to present her side of the story. See id. ¶ 100.

This, she alleges, is because the “MPD and the District

apparently either have no policy providing for such notice and

opportunity to be heard or have a policy, custom, usage or

practice of not providing such notice and opportunity when an

employee is being terminated for reasons that would affect his

or her reputation and/or stigmatize him or her.” Id. ¶ 122.

After her termination from the MPD, Ms. McGinnis “applied for

numerous positions in law enforcement, but has not been hired by

any law enforcement agency.” Id. ¶ 107.1 She attributes this to

1
Ms. McGinnis provided further detail about her job search in
her opposition brief. See Opp. at 6 & n.2. The Court does not
consider these allegations because “[i]t is axiomatic that a
complaint may not be amended by the briefs in opposition to a

9
the fact that, “[e]ach time she applies for a new position in

law enforcement, [she] is required to truthfully describe her

employment history and the reasons for her separation from

previous employers, including the defamatory rationale for her

termination by MPD.” Id. ¶ 105.

F. Procedural History

On August 15, 2013, Ms. McGinnis filed this lawsuit against

the District of Columbia, Lieutenant Ashley Rosenthal, Inspector

Alisa Petty, Lieutenant Gregory Stroud, and Diana Haines-Walton.

She alleged violations of her Fifth Amendment rights against the

individual defendants and the District, as well as claims for

intentional infliction of emotional distress and defamation

against the District. See Compl. ¶¶ 88–154. After the defendants

moved to dismiss the federal claims on the grounds that

plaintiff lacked a protected property interest in continued

employment, Defs.’ First Mot. to Dismiss, ECF No. 6, plaintiff

filed a consent motion for leave to file an amended complaint to

correct her complaint to allege a violation of her liberty

interest. See Mot. for Leave, ECF No. 9; First Am. Compl., ECF

No. 10.

On January 17, 2014, the defendants moved to dismiss

plaintiff’s Fifth Amendment claims or, in the alternative, for

motion to dismiss.” Arbitraje Casa de Cambio, S.A. de C.V. v.
U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003)
(quotation marks omitted).

10
summary judgment on those claims. See Defs.’ Mot. to Dismiss

(“Mot.”), ECF No. 13. Plaintiff filed her opposition brief on

February 18, 2014 and objected to the defendants’ request for

summary judgment as premature under Federal Rule of Civil

Procedure 56(d). See Opp. to Mot. (“Opp.”), ECF No. 15; Rule

56(d) Aff., ECF No. 15-1. The defendants filed their reply

brief, which indicated that they no longer request summary

judgment, on March 10, 2014. See Reply in Supp. of Mot.

(“Reply”), ECF No. 18. In July 2014, at the Court’s request, the

parties filed supplemental briefs addressing the D.C. Circuit’s

decision in McCormick v. District of Columbia, 752 F.3d 980

(D.C. Cir. 2014). See Pl.’s Suppl. Br., ECF No. 20; Defs.’

Suppl. Br., ECF No. 21.

II. Standard of Review

A motion to dismiss under 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). A complaint must

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief, in order to give the

defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (quotation marks omitted). While detailed factual

allegations are not necessary, plaintiff must plead enough facts

to “raise a right to relief above the speculative level.” Id.

11
 When ruling on a Rule 12(b)(6) motion, the Court may consider

“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).

The Court must construe the complaint liberally in plaintiff’s

favor and grant plaintiff the benefit of all reasonable

inferences deriving from the complaint. Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court

must not accept plaintiff’s inferences that are “unsupported by

the facts set out in the complaint.” Id. “[O]nly a complaint

that states a plausible claim for relief survives a motion to

dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

“Threadbare recitals of “the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.

III. Analysis

The Fifth Amendment provides that “[n]o person shall . . . be

deprived of life, liberty, or property without due process of

law.” U.S. Const. Amend. V. Ms. McGinnis asserts that the

defendants’ actions implicate the liberty interest protected by

that Amendment because they wrongly terminated her for lying on

her job application and provided her neither notice nor an

opportunity to contest the allegations.

12
 As a general rule, “persons whose future employment prospects

have been impaired by government defamation ‘lack . . . any

constitutional protection for the interest in reputation.’”

Trifax Corp. v. District of Columbia, 314 F.3d 641, 643 (D.C.

Cir. 2003) (quoting Siegert v. Gilley, 500 U.S. 226, 234 (1991))

(alteration in original). This is especially true of at-will

employees, who may be “discharge[d] . . . at any time and for

any reason, or for no reason at all.” Kassem v. Wash Hosp. Ctr.,

513 F.3d 251, 254 (D.C. Cir. 2007); see also McCormick, 752 F.3d

at 987 (“Normally, one cannot be deprived unlawfully of

something to which one had no legally protected right before the

deprivation.”). There are, however, narrow exceptions to this

doctrine, drawn from the Supreme Court’s decision in Board of

Regents v. Roth, 408 U.S. 564 (1972). “A claim for deprivation

of a liberty interest without due process based on allegedly

defamatory statements of government officials . . . may proceed

on one of two theories: a ‘reputation-plus’ claim or a ‘stigma

or disability’ claim.” Fonville v. District of Columbia, No. 02-

2353, 2014 WL 1427780, at *7 (D.D.C. Apr. 14, 2014).

The reputation-plus theory is implicated when the government

makes a “charge against [the employee] that might seriously

damage his standing and associations in the community,” Roth,

408 U.S. at 573, and does so in connection with a termination or

other change in employment status. See O’Donnell v. Barry, 148

13
F.3d 1126, 1140 (D.C. Cir. 1998). “Although the conceptual basis

for reputation-plus claims is not fully clear, it presumably

rests on the fact that official criticism will carry much more

weight if the person criticized is at the same time demoted or

fired.” Id. The stigma theory relates to situations where a

government action “foreclosed [the employee’s] freedom to take

advantage of other employment opportunities.” Roth, 408 U.S. at

573. Stigma “does not depend on official speech, but on a

continuing stigma or disability arising from official action.”

O’Donnell, 148 F.3d at 1140.

Defendants argue that plaintiff’s Fifth Amendment claims must

be dismissed because she has failed to state a claim under

either theory. The individual defendants also argue that Ms.

McGinnis failed to allege facts connecting defendants Rosenthal,

Petty, and Stroud to the constitutional violation and that

defendant Haines-Walton is entitled to qualified immunity.

Finally, the District argues that plaintiff’s Fifth Amendment

claim against it should be dismissed for lack of a municipal

policy or custom connecting the District to any wrongdoing. The

Court first addresses plaintiff’s stigma theory and the

individual defendants’ arguments that they cannot be held liable

under that theory. Next, the Court addresses plaintiff’s

reputation-plus theory and the individual defendants’ arguments

against liability under that theory. Finally, the Court

14
addresses the District’s argument that it cannot be liable for

any constitutional violation because no municipal policy or

custom was the moving force behind the alleged violations.

A. Ms. McGinnis’s Stigma Theory Against the Individual
Defendants

A court faced with a claim for qualified immunity must

analyze: “(1) ‘whether a constitutional right would have been

violated on the facts alleged,’ and (2) ‘whether the right was

clearly established’ at the time of the violation.” Shaw v.

District of Columbia, 944 F. Supp. 2d 43, 54 (D.D.C. 2013)

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). The Supreme

Court has given judges flexibility “to exercise their sound

discretion in deciding which of the two prongs . . . should be

addressed first in light of the circumstances in the particular

case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Because only one individual defendant raises qualified immunity

and Ms. McGinnis’s claims against the individual defendants

raise the same legal issues as her claim against the District,

the Court addresses the constitutional question first, before

analyzing whether any right was clearly established.

1. Ms. McGinnis Alleged a Violation of Her Fifth
Amendment Right Under the Stigma Theory.

The stigma theory “provides a remedy where the terminating

employer imposes upon the discharged employee a stigma or other

disability that foreclosed the plaintiff’s freedom to take

15
advantage of other employment opportunities.” McCormick, 752

F.3d at 988 (quotation marks and alterations omitted). “[T]he

‘stigma’ claim, unlike the reputation-plus claim, ‘does not

depend on official speech’ but on a ‘stigma or disability

arising from official action.’” Id. (quoting O’Donnell, 148 F.3d

at 1140).

Defendants argue that Ms. McGinnis must allege active

publication by the government of the reasons for her termination

to state a claim under the stigma theory. See Mot. at 10–14;

Reply at 5–8. Although defendants argue that the D.C. Circuit’s

decision in McCormick supports their argument, Defs.’ Suppl.

Br., ECF No. 21, the opposite is true. In that case, a

correctional officer who was terminated for assaulting a

handcuffed inmate disputed the results of the investigation that

led to his termination. See McCormick, 752 F.3d at 982–83. He

based his stigma claim on allegations that his termination for

assaulting an inmate would preclude him from further employment

as a correctional officer because he would have to inform

prospective employers of it. See id. at 987.

The D.C. Circuit first noted that Mr. McCormick’s “factual

theory is that the appellees took the official act of firing

him” and “[h]e cannot obtain other employment in his chosen

field, therefore he has suffered stigma[, which] arises from his

having to tell prospective employers why he was fired.” Id. at

16
988. The Circuit then stated that “the only official act

committed by the defendants is the termination” and “[t]he

termination of an at-will employee is not sufficient to

establish the deprivation of protected liberty interests.” Id.

The Circuit went on to assert that “[t]he Supreme Court in

Bishop v. Wood effectively dispose[d] of McCormick’s claims.”

Id. (citation omitted).

While these passages appear at first glance to support the

defendants, the Circuit went on to note that, while Bishop may

dispose of a reputation-plus theory in these circumstances, Mr.

McCormick also asserted “in reliance on the stigma theory” an

actionable liberty interest “even though he was an at-will

employee and there was no government publication of derogatory

information about him.” Id. at 989. Indeed, the Circuit

emphasized that “Bishop v. Wood does not address this

understanding” and “does not dispose of this theory” and that

prior Circuit precedent regarding the stigma theory “discussed—

not communication by the government—but the plaintiff’s

remaining reasonable job opportunities in the field.” Id.

(citing O’Donnell, 148 F.3d at 1140–41). The Circuit then noted

that if the plaintiff “was as free as before to seek another

job,” he “plainly . . . had not made out a case that he was

broadly precluded from his chosen profession”:

17
 Mr. McCormick, in contrast, cite[d] deposition
testimony [from corrections officials] to the effect
that he can never again be employed in the corrections
field and that therefore, his termination implicates
his liberty interest. Although that testimony is not
as compelling as Mr. McCormick suggests, it is
arguably sufficient to establish a genuine dispute as
to a material fact—namely whether the circumstances of
the termination had the broad effect of barring him
from further employment in his chosen profession.

Id. (citations, quotation marks, and alteration omitted).

Defendants’ reading of McCormick, therefore, is incorrect.

Affirmative publication by the government is not a necessary

element of a stigma claim so long as the plaintiff alleges why

the government action has the effect of precluding her from

future employment.

To survive a motion to dismiss, then, Ms. McGinnis must show

that her termination “has worked a change in [her] status under

law, either by (a) automatically excluding her from a definite

range of employment opportunities . . . or (b) broadly

precluding her from continuing in her chosen career.” Kartseva

v. Dep’t of State, 37 F.3d 1524, 1527 (D.C. Cir. 1994).

Automatic exclusion, which may arise, for example, through

“formal[] debar[ment],” Trifax Corp., 314 F.3d at 643, has not

been alleged. The question is thus whether plaintiff’s

termination for lying on her application will broadly preclude

her from obtaining future employment in law enforcement to the

point that it will “‘seriously affect[], if not destroy[]’ [her]

18
ability to pursue [her] chosen profession.” O’Donnell, 148 F.3d

at 1141 (quoting Kartseva, 37 F.3d at 1529). “[I]f [she] has

merely lost one position in her profession but is not foreclosed

from reentering the field, she has not carried her burden.”

Kartseva, 37 F.3d at 1529.

Alleging broad preclusion is not a mathematical exercise. Ms.

McGinnis need not plead a particular “duration of unemployment

[to] convert her stigma from implausible to plausible.” Campbell

v. District of Columbia, 972 F. Supp. 2d 38, 46 (D.D.C. 2013).

At a minimum, she must allege that she has applied for and been

rejected from other positions in her field. See Orange v.

District of Columbia, 59 F.3d 1267, 1275 (D.C. Cir. 1995)

(denying stigma claim where plaintiffs had not subsequently

applied for any similar jobs); Dave v. D.C. Metro. Police Dep’t,

926 F. Supp. 2d 247, 252 (D.D.C. 2013) (granting summary

judgment where “plaintiff has never sought other law enforcement

positions”). Relatedly, she cannot have obtained a similar job

after her termination. See O’Donnell, 148 F.3d at 1141 (former

Deputy Chief of Police in Washington, D.C. did not suffer stigma

where he obtained employment as Chief of Police in a small

town).

Difficulty obtaining a job in the field, while necessary, is

not sufficient because it “might easily be explained in other

ways.” Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507

19
(D.C. Cir. 1995). Ms. McGinnis must also allege that the

government action is at fault for the difficulty, or at least

placed a “significant roadblock” in her path. Payne v. District

of Columbia, 773 F. Supp. 2d 89, 96 (D.D.C. 2011). In McCormick,

for example, the plaintiff submitted “deposition testimony [by

correctional officials] to the effect that he can never again be

employed in the corrections field.” 752 F.3d at 989. At the

motion to dismiss stage, allegations that a termination

“denigrated the plaintiff’s professional competence and impugned

his personal reputation in such a fashion as to effectively put

a significant roadblock in his ability to obtain other

employment,” are sufficient. See Holman v. Williams, 436 F.

Supp. 2d 68, 80 (D.D.C. 2006).

Ms. McGinnis’s allegations are sufficient to state a claim.

She asserts that she has “applied for numerous positions in law

enforcement, but has not been hired by any law enforcement

agency.” First Am. Compl., ECF No. 10 ¶ 107. Ms. McGinnis

further alleges that the reason for her inability to obtain a

position is her termination: “Each time she applies for a new

position in law enforcement, [she] is required to truthfully

describe her employment history and the reasons for her

separation from previous employers, including the defamatory

rationale for her termination by MPD.” Id. ¶ 105. Although

defendants view this connection as attenuated, it is identical

20
to the connection recognized by the D.C. Circuit in McCormick.

See 752 F.3d at 989. This is sufficient at this stage to allege

that the MPD’s action placed “a significant roadblock” in her

path. See Payne, 773 F. Supp. 2d at 96. Moreover, Ms. McGinnis’s

prior experience, which included years as a police officer and

many awards, arguably supports her allegations that her failure

to obtain employment is related to the MPD’s action. See Alexis

v. District of Columbia, 44 F. Supp. 2d 331, 341–42 (D.D.C.

1999).

Defendants respond that “‘it is doubtful that the silent

actions of a single agency within a single municipal government

can have a sufficiently broad effect to alter an individual’s

legal rights to such a degree as to implicate a liberty

interest.’” Mot. at 12 (quoting Dave, 926 F. Supp. 2d at 252).

This may be true where the reason for an individual’s

termination cannot become known to any prospective employers.

See Dave, 926 F. Supp. 2d at 249 (even the plaintiff was unaware

of the reasons until after litigation began). Here, however, the

MPD’s silent actions were amplified because plaintiff must share

them with prospective employers in her field. See First Am.

Compl., ECF No. 10 ¶ 105. As McCormick demonstrates, a stigma

claim may stand where an agency’s silent actions will be

communicated to prospective employers and will mean that the

21
plaintiff “can never again be employed in the . . . field.” 752

F.3d at 989.

Discovery may reveal that the MPD’s silent actions remain

silent, or that plaintiff’s termination poses “nothing more than

a competitive disadvantage.” Mot. at 11. At this stage of

proceedings, however, the Court must accept Ms. McGinnis’s claim

that her termination and the government’s allegations of serious

dishonesty must be shared with future employers and that those

allegations implicate a core requirement of the law-enforcement

profession, such that she cannot obtain further employment in

the field. See First Am. Compl., ECF No. 10 ¶¶ 105, 107.

Accordingly, Ms. McGinnis has stated a Fifth Amendment claim

under the stigma theory.2

2. Ms. Haines-Walton is Not Entitled to Qualified
Immunity and Each Individual Defendant Participated in
the Constitutional Violation.

Having established that Ms. McGinnis alleged a violation of

her Fifth Amendment right, “[w]hat remains is to determine

whether . . . any of the individual defendants can be held

liable . . . under 42 U.S.C. § 1983.” Elkins v. District of

Columbia, 690 F.3d 554, 564 (D.C. Cir. 2012). Ms. McGinnis must

show “‘that each [one], through the official’s own individual

2
Ms. McGinnis properly alleged the second component of a due-
process claim—that she was not provided the process due to her,
Reeve Aleutian Airways Inc. v. United States, 982 F.2d 594, 598
(D.C. Cir. 1993)—by claiming that she received no process at
all. See First Am. Compl., ECF No. 10 ¶ 100.

22
actions, has violated the Constitution.’” Id. (quoting Iqbal,

556 U.S. at 676) (alteration in original). Moreover, a defendant

may be entitled to qualified immunity, which is “an immunity

from suit rather than a mere defense to liability.” Pearson, 555

U.S. at 231 (quotation marks omitted).

Government officials are entitled to qualified immunity

“‘insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.’” Butera v. District of Columbia, 235 F.3d

637, 646 (D.C. Cir. 2001) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). “Clearly established for purposes of

qualified immunity means that the contours of the right must be

sufficiently clear that a reasonable official would understand

what he is doing violates that right.” Shaw, 944 F. Supp. 2d at

54 (quotation marks omitted). Put another way, “existing

precedent must have placed the . . . constitutional question

beyond debate.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)

(quotation marks omitted). This analysis “depends substantially

upon the level of generality at which the relevant [law] is to

be identified,” so a court must ensure that the right was

“‘clearly established’ in a more particularized . . . sense.”

Anderson v. Creighton, 483 U.S. 635, 639, 640 (1987). This is

not to say that an identical fact pattern must previously have

23
been adjudicated, but “in the light of pre-existing law the

unlawfulness must be apparent.” Id. at 640.

Ms. Haines-Walton contends that she is entitled to qualified

immunity. By contrast, defendants Rosenthal, Petty, and Stroud

did not raise qualified immunity, arguing only that Ms. McGinnis

failed to allege facts to support an inference that their “own

individual actions,” Iqbal, 556 U.S. at 676, caused any

constitutional violation.

a. Haines-Walton

There appears to be no dispute that Ms. Haines-Walton’s “own

individual actions,” id., caused the alleged constitutional

violation. She allegedly wrote the defamatory memorandum

memorializing the reasons for Ms. McGinnis’s termination and

participated in the “conspiracy” to terminate Ms. McGinnis for

those reasons. See First Am. Compl., ECF No. 10 ¶¶ 81–82, 93.

This is connected to the constitutional harm, which flows from

the act of terminating Ms. McGinnis for reasons that must be

shared with prospective employers and will preclude her from

employment in her field.

Ms. Haines-Walton alleges that she is entitled to qualified

immunity “because a reasonable officer in her position could not

have anticipated that recommending Plaintiff for termination

would implicate liberty interest violations.” Mot. at 16.

Specifically, she claims that she could not have anticipated

24
violating a constitutional right “because MPD did not make the

reasons . . . public” and any stigma claim “did not arise until

after Plaintiff was terminated.” Id. at 17. Plaintiff responds

that “[t]he ‘contours’ of Ms. McGinnis’s right to her

constitutional liberty interest” were clearly established

because “[t]he well-established and protected right in this case

is the opportunity to be heard before being slandered and

defamed.” Opp. at 23. Plaintiff defines the right at too high a

level of generality, so the Court examines the right at a more

specific level. See Anderson, 483 U.S. at 640.

To begin, it was clearly established that a stigma claim could

arise when a government action broadly precludes an employee

from further employment in her field. In Kartseva, the Circuit

made clear that a plaintiff could state such a claim when the

government action “does not have [a] binding effect, but

nevertheless has the broad effect of largely precluding [the

plaintiff] from pursuing her chosen career.” 37 F.3d at 1529

(emphasis in original). The D.C. Circuit further established

that such preclusion can be demonstrated where the government’s

action will “‘seriously affect[], if not destroy[]’ [her]

ability to pursue [her] chosen profession.” O’Donnell, 148 F.3d

at 1141 (quoting Kartseva, 37 F.3d at 1529); see also, e.g.,

Taylor, 56 F.3d at 1507; Payne, 773 F. Supp. 2d at 96; Holman,

436 F. Supp. 2d at 80.

25
 The dispute is whether it was clearly established that a

government official could be held liable when the reason for

termination was not affirmatively disseminated to the public,

but must inevitably be shared with future employers. Although

the D.C. Circuit held as much in McCormick, that decision came

after the events underlying this case. Nonetheless, McCormick

built upon preexisting precedent within this Circuit making

clear that a government employee’s constitutional rights can be

violated by an action that will broadly preclude her from future

employment in her field, even if there is no formal publication.

The Supreme Court’s decision in Roth emphasized that a stigma

claim would arise from the government’s action “in declining to

re-employ the respondent,” when that action “imposed . . . a

stigma or other disability that foreclosed his freedom to take

advantage of other employment opportunities.” Roth, 408 U.S. at

573. This contrasted with a reputation-plus claim, which would

arise only from government speech. See id. Later, in Bishop v.

Wood, the Supreme Court found that a reputation-plus claim could

not stand where the statement “was not made public,” but did not

address the stigma theory. 426 U.S. 341, 348 (1976).

In a line of decisions, the D.C. Circuit established that the

stigma theory does not require publication. In Old Dominion

Dairy Products v. Secretary of Defense, it found a stigma claim

where the government’s determination that a contractor was

26
irresponsible and placement of “a written determination of

nonresponsibility” in the contractor’s file would be revealed to

future contracting officers “every time Old Dominion bid for a

contract.” 631 F.2d 953, 957, 963 (D.C. Cir. 1980). This

occurred because future contracting officers would inevitably

request information about the company’s past performance and

thereby learn of the determination. Id. at 375–77, 381. This

finding was repeatedly confirmed when, faced with stigma claims,

the D.C. Circuit did not analyze whether there was sufficiently

broad publication, but instead analyzed whether the plaintiff

had alleged or proven sufficiently broad preclusion from her

field of employment. See Orange, 59 F.3d at 1274–75; Kartseva,

37 F.3d at 1529–30; Taylor, 56 F.3d at 1501, 1506–07; Mosrie v.

Barry, 718 F.2d 1151, 1156 (D.C. Cir. 1983).

Any doubt about the viability of a stigma claim in the absence

of publication was resolved in O’Donnell v. Barry, where the

D.C. Circuit denied a plaintiff’s reputation-plus claim in part

for insufficient publication. See 148 F.3d at 1140. The Court

did not rely on this rationale to dispose of the plaintiff’s

stigma claim; instead, it found that because the plaintiff had

found a new job as a Chief of Police in a small town, he could

not prove any foreclosure from employment. Id. at 1141. In so

holding, the D.C. Circuit noted that a stigma claim “differs

from [a reputation-plus claim] in that it does not depend on

27
official speech, but on a continuing stigma or disability

arising from official action.” Id. at 1140.

A 2011 decision by another Judge of this Court reaffirmed that

a plaintiff may state a claim under the stigma theory without

publication by the government. See Okpala v. District of

Columbia, 819 F. Supp. 2d 13 (D.D.C. 2011). The Court held that:

[D.C. Circuit precedent does not] stand[] for the
proposition that a liberty interest claim based on
defamation is actionable solely when outside
publication occurs when proceeding under the ‘stigma
or disability’ theory of liability. Indeed, valid
liberty interest due process claims under the ‘stigma
or disability’ theory were stated in [prior D.C.
Circuit decisions] despite the fact that the
defamatory statements were not published outside of
government.

Id. at 17 (citations omitted). Although the D.C. Circuit in 2012

had not yet decided a case involving the precise facts at issue

in this case, the line of precedent making clear in a variety of

contexts that stigma claims do not require publication

“preclude[s] a viable ‘head-in-the-sand’ defense.” Cox v.

Roskelley, 359 F.3d 1105, 1113 (9th Cir. 2004).

Having found that the particular constitutional right was

clearly established, the Court must also determine whether Ms.

Haines-Walton should have been aware that her conduct violated

that right. See Elkins, 690 F.3d at 568. To avoid such a

finding, she relies on Holman v. Williams, which found qualified

immunity under a stigma theory where “[t]he official action in

28
question—plaintiff’s termination—was itself not unlawful” and

“the ‘disability’ to plaintiff (his inability to find other

legal work) did not arise until after plaintiff had been fired.”

436 F. Supp. 2d at 82. Ms. Haines-Walton relies on this

reasoning to seek qualified immunity, Mot. at 17–18, but ignores

the footnote that was attached to the quoted sentence, which

states that “[p]laintiff makes no allegation that the Mayor or

any other responsible official could have foreseen the effect of

plaintiff’s termination and the [public] statements . . . on

plaintiff’s subsequent employment prospects” and notes that the

Court did not “find it reasonable to infer such foreseeability

from the facts alleged.” Holman, 436 F. Supp. 2d at 82 n.11.

Holman therefore stands for the proposition that an official

is entitled to qualified immunity when it would not have been

foreseeable that terminating someone could have a broadly

preclusive effect in the future. This flows from the general

purpose of qualified immunity: To ensure that government

officials are held liable only when they “violate clearly

established . . . rights of which a reasonable person would have

known.” Pearson, 555 U.S. at 231 (emphasis added). By contrast,

when such preclusion is foreseeable, refusing to hold a

government official liable would appear to preclude anyone from

bringing a stigma-theory claim against an individual defendant.

29
 In Holman, it was not foreseeable that statements which

“denigrated the plaintiff’s professional competence and impugned

his personal reputation” and a published article indicating that

the plaintiff had been fired for reasons related to “job

performance” could have broadly precluded the plaintiff from

employment in his field. Id. 79–82. By contrast, accepting Ms.

McGinnis’s allegations as true, it would have been foreseeable

to Ms. Haines-Walton that termination for lying about a medical

condition would broadly preclude a police officer from obtaining

employment. Plaintiff notes that in Tygrett v. Barry, the

Circuit cited approvingly a statement of a Judge of this Court

that a “good reputation for truthfulness is essential to the

ability of a police officer to perform efficiently and

effectively his many testimonial duties.” 627 F.2d 1279, 1285

(D.C. Cir. 1980). That Ms. Haines-Walton, as Director of Human

Resources for the MPD, would have been aware of the importance

of truthfulness and of plaintiff’s likely need to share the

reasons for her termination with prospective employers is not

implausible. It thus could have been foreseeable, on the facts

alleged, that Ms. Haines-Walton’s actions could broadly preclude

Ms. McGinnis from employment in law enforcement. Accordingly,

plaintiff’s claim against Defendant Haines-Walton may proceed.

b. Rosenthal, Petty, and Stroud

30
 According to Ms. McGinnis’s allegations, Lieutenant Rosenthal,

Inspector Petty, and Director Stroud participated in the

“conspiracy” to terminate her for defamatory reasons and

“encouraged the District to terminate [her] based on [the]

defamatory pretext.” First Am. Compl., ECF No. 10 ¶¶ 11, 93.

Moreover, Ms. McGinnis alleged additional facts connecting each

of them to events surrounding the termination. See id. ¶¶ 49–50,

57, 60–64, 70–72. As discussed above, participation in the

decision to terminate Ms. McGinnis for allegedly defamatory

reasons is sufficient to show that defendants Rosenthal, Petty,

and Stroud caused the constitutional harm under the stigma

theory by “the official’s own individual actions.” Iqbal, 556

U.S. at 676. Because defendants Rosenthal, Petty, and Stroud did

not raise qualified immunity, the Court does not address whether

they may be entitled to it at this stage of proceedings.

B. Ms. McGinnis’s Reputation-Plus Theory Against the
Individual Defendants.

The stigma and reputation-plus theories appear to be two sides

of the same coin; Ms. McGinnis need only state a claim under one

theory for her Fifth Amendment claim to go forward. See

Evangelou v. District of Columbia, 901 F. Supp. 2d 159, 172

(D.D.C. 2012) (noting, where a plaintiff “appear[ed] to

conflate” the reputation-plus and stigma theories, that “[t]o

succeed on the merits of his claim, he will need to prove one or

31
the other”); Okpala, 819 F. Supp. 2d at 16 (“[w]hen pursuing [a

Fifth Amendment claim], Plaintiff may proceed under one of two

theories”). Although the Court has already found that Ms.

McGinnis’s claims against the individual defendants may proceed

under the stigma theory, to ensure completeness, the Court also

addresses whether her claims may proceed under the reputation-

plus theory.

1. Ms. McGinnis Alleged a Violation of Her Fifth
Amendment Right Under the Reputation-Plus Theory.

The reputation-plus theory addresses the harm that arises from

government defamation in conjunction with a “change in legal

status.” Mosrie, 718 F.2d at 1161. “This theory makes the

termination actionable only where the terminating employer has

disseminated the reasons for the termination and such

dissemination is defamatory.” McCormick, 752 F.3d at 988. The

reasons, moreover, must not “pertain[] solely to plaintiff’s job

performance” because “dismissal for ‘unsatisfactory job

performance . . . does not carry with it the sort of opprobrium

sufficient to constitute a deprivation of liberty.’” Holman, 436

F. Supp. 2d at 79 (quoting Harrison v. Bowen, 815 F.2d 1505,

1518 (D.C. Cir. 1987)).

It is undisputed that plaintiff’s termination “is an example

of a ‘paradigmatic’ status change” for purposes of a reputation-

plus claim. See Doe v. Cheney, 885 F.2d 898, 910 (D.C. Cir.

32
1989). It is also well-established that “accusations of

dishonesty” may create reputation-damaging harm “of

Constitutional proportions.” Alexis, 44 F. Supp. 2d at 339. The

parties dispute whether the reasons for Ms. McGinnis’s

termination were disseminated. Plaintiff claims that they were,

in two ways: (1) through the placement of the Haines-Walton Memo

in her personnel file, “which is potentially available to

prospective employers or other government officials”; and (2)

through publication to MPD officers, including Sergeants Butler

and Young, who were allowed to read her personnel file, and

“[o]thers in the MPD and at the Academy[, who] have become aware

of the defamatory rationale for [her] termination despite their

having no legitimate business-related reason to know.” First Am.

Compl., ECF No. 10 ¶¶ 80, 102–03. Defendants respond that the

memo cannot be made available to anyone pursuant to D.C. law,

and that any dissemination to members of the MPD is not

publication for purposes of a reputation-plus claim. See Reply

at 8–12.

Plaintiff’s first theory—that the placement of the Haines-

Walton Memo in her personnel file is sufficient publication

because the file may be available to prospective employers—

implicates a long-running split among the Circuits.3 The D.C.

3
Compare Burton v. Town of Littleton, 426 F.3d 9, 15 n.5, 17
(1st Cir. 2005) (requiring proof that reputation-damaging

33
Circuit previously took a side, indicating that placement of a

defamatory statement in a personnel file that may be available

to elements of the public was enough for a reputation-plus

claim. See Mazaleski v. Treusdell, 562 F.2d 701, 713 (D.C. Cir.

1977) (publication was properly alleged where statement was

placed in a personnel file, in light of a rule permitting

“limited information [from a personnel file] to be provided

prospective employers upon inquiry”). Subsequently, in Doe v.

Department of Justice, the Circuit found that “[t]he ‘public

disclosure’ requirement would also be satisfied if the [agency]

placed [a] termination memorandum in [a plaintiff’s] personnel

file and made that file available, even on a limited basis, to

prospective employers or government officials.” 753 F.2d 1092,

1113 n.24 (D.C. Cir. 1985); see also Brandt, 820 F.2d at 45

(citing Doe as an example of a court “conclud[ing] that the

public disclosure requirement has been satisfied where the

stigmatizing charges are placed in the discharged employee’s

statement in personnel file has already been disseminated to the
public), Kocher v. Larksville Borough, 548 F. App’x 813, 820–21
(3d Cir. 2013) (same), Johnson v. Martin, 943 F.2d 15, 16–17
(7th Cir. 1991) (same), and Pollock v. Baxter Manor Nursing
Home, 706 F.2d 236, 241–42 (8th Cir. 1983) (same), with Cox v.
Roskelley, 359 F.3d 1105, 1112 (9th Cir. 2004) (requiring only
that the personnel file could be viewed by the public), Bailey
v. Kirk, 777 F.2d 567, 580 n.18 (10th Cir. 1985) (same), Buxton
v. City of Plant City, 871 F.2d 1037, 1045–46 (11th Cir. 1989)
(same), Brandt v. Bd. of Coop. Educ. Servs., 820 F.2d 41, 44–45
(2d Cir. 1987) (requiring a likelihood that file will be viewed
by the public), and Sciolino v. City of Newport News, 480 F.3d
642, 649 (4th Cir. 2007) (same).

34
personnel file and are likely to be disclosed to prospective

employers”). In reliance on these decisions, one Judge of this

Court recently found that an “allegation that there is negative

information injuring [a plaintiff’s] reputation in his file that

is publicly available to future employers states a reputation-

plus claim [when that information] consists of the reasons for

his termination.” Peter B v. CIA, 620 F. Supp. 2d 58, 72 (D.D.C.

2009).

Two other Judges of this Court, however, have concluded that

this understanding has been undermined by subsequent

developments. See Dave, 926 F. Supp. 2d at 250–51; De Sousa v.

Dep’t of State, 840 F. Supp. 2d 92, 110 (D.D.C. 2012). Those

decisions note that the D.C. Circuit has emphasized the need for

allegations or proof “that the government has disseminated the

cause of his termination.” U.S. Information Agency v. Krc, 905

F.2d 389, 398 (D.C. Cir. 1990); see also Doe v. Cheney, 885 F.2d

at 910 (claim failed because the agency “did not disseminate

publicly any of the information”). Indeed, the D.C. Circuit has

held that “injury to reputation cannot occur in the absence of

public disclosure of the allegedly damaging statements.” Orange,

59 F.3d at 1274. None of these D.C. Circuit decisions, however,

involved the placement of reputation-damaging information in a

publicly available personnel file.

35
 The Court therefore follows the decision in Peter B and the

D.C. Circuit’s decisions in Doe and Mazaleski, which appear to

be the only D.C. Circuit decisions to have addressed whether a

statement is published when it is placed in a public personnel

file. The Circuit’s more general description of the publication

requirement did not clearly displace those earlier decisions and

it appears that the government’s act of placing a statement in a

publicly available personnel file would be “publication” within

the meaning of those decisions. See Krc, 905 F.2d at 398 (a

plaintiff must allege “that the government has disseminated the

cause of his termination”). Accordingly, if Ms. McGinnis’s

personnel file is available to future employers, she has stated

a reputation-plus claim.

Defendants contend that the file cannot be made available to

anyone, so there is no possible risk of future publication. They

initially relied upon a declaration from Ms. Haines-Walton, but

such evidence is unhelpful to the resolution of a motion to

dismiss. See Mot. at 7–8 (citing Haines-Walton Decl., ECF No.

13-1 ¶¶ 6–7). Defendants shifted gears in their reply brief,

when they cited a District of Columbia regulation. See Reply at

10–12. The Court is skeptical of defendants’ request that it

consider this argument, which was not mentioned until their

reply brief. Indeed, the D.C. Circuit has noted that “district

courts, like this court, generally deem arguments made only in

36
reply briefs to be forfeited.” MBI Grp., Inc. v. Credit Foncier

Du Cameroun, 616 F.3d 568, 575 (D.C. Cir. 2010) (quotation marks

omitted). Moreover, the cited regulations appear to provide

contradictory guidance. They prohibit disclosure to a

“prospective employer” of “[t]he reason for [an employee’s]

separation . . . without the prior written consent of the data

subject.” D.C. Mun. Regs. Tit. vi § 3113.3 (2014). The

regulations subsequently state that “[i]nformation from the

Official Personnel Folder may be disclosed to a prospective

District or Federal Government employer.” Id. § 3113.7.

These related concerns, that defendants did not mention these

regulations until their reply brief and failed to explain the

potentially contradictory nature of the regulations, prevent the

Court from holding at this stage of proceedings that Ms.

McGinnis’s personnel file is not available to any member of the

public. See Mazaleski, 562 F.2d at 713 (“In view of this

apparent inconsistency [between a regulation keeping personnel

files secret and another permitting disclosure to prospective

employers] and the lack of any further explanation by the

parties, we cannot now conclude that the reasons for [the

plaintiff’s] termination will remain confidential.)”. The Court

must therefore accept Ms. McGinnis’s allegation that the file is

public. See First Am. Compl., ECF No. 10 ¶ 103. Accordingly, Ms.

McGinnis has stated a Fifth Amendment claim under the

37
reputation-plus theory on the basis of the presence of the memo

in her personnel file, which is allegedly available to

prospective employers.4

2. Ms. Haines-Walton is Entitled to Qualified Immunity
and the Other Individual Defendants Did Not
Participate in the Constitutional Violation.

Having established that Ms. McGinnis sufficiently alleged a

violation of her Fifth Amendment right under the reputation-plus

theory, Ms. McGinnis must show “‘that each [individual

defendant], through the official’s own individual actions, has

violated the Constitution.’” Elkins, 690 F.3d at 564 (quoting

Iqbal, 556 U.S. at 676). Moreover, individual defendants may be

entitled to qualified immunity, “‘insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Butera,

235 F.3d at 646 (quoting Harlow, 457 U.S. at 818).

Ms. Haines-Walton contends that, even if plaintiff has alleged

her participation in the violation of a Fifth Amendment right,

4
Because Ms. McGinnis has stated a reputation-plus theory on
this basis, the Court declines to address her alternative
argument that she has also stated a reputation-plus theory due
to the fact that “[o]thers in the MPD and at the Academy have
become aware of the defamatory rationale for [her] termination
despite their having no legitimate business-related reason to
know.” First Am. Compl., ECF No. 10 ¶ 102. Addressing this
alternate dispute at this stage of proceedings would not affect
her claims against any individual defendant because she pled no
facts to connect any of the individual defendants’ “own
individual actions,” Iqbal, 556 U.S. at 676, to any
dissemination of the memo to any MPD or Academy official.

38
she is entitled to qualified immunity. Defendants Rosenthal,

Petty, and Stroud did not raise qualified immunity in their

motion to dismiss, arguing only that Ms. McGinnis failed to

allege facts to support an inference that they caused any

constitutional violation.

Ms. McGinnis has failed to connect defendants Rosenthal,

Petty, and Stroud to the reputation-plus violation through the

placement of the Haines-Walton Memo in her personnel file. None

of those defendants are alleged to have written the memo, placed

it in her file, or made it available to anyone. Ms. McGinnis

has, however, alleged sufficient facts to connect Ms. Haines-

Walton to that action by claiming that Ms. Haines-Walton wrote

the memo. The Court must therefore address whether Ms. Haines-

Walton is entitled to qualified immunity for that action.

In the wake of Roth and its follow-on cases, it is “clearly

established that when the government terminates a public

employee and makes false or substantially inaccurate public

charges or statements that stigmatize the employee, that

employee’s liberty interest is implicated.” McMath v. City of

Gary, 976 F.2d 1026, 1031 (7th Cir. 1992); see also Mosrie, 718

F.2d at 1161. At the time of the actions at issue in this

lawsuit, it was clearly established that termination was “a

‘paradigmatic’ status change” triggering this right, Doe v.

Cheney, 885 F.2d at 910, and that “accusations of dishonesty”

39
could cause reputation-damaging harm “of Constitutional

proportions.” Alexis, 44 F. Supp. 2d at 339; see also Harrison,

815 F.2d at 1518. The question is whether it was clearly

established that Ms. Haines-Walton could publicize those charges

by writing them in a memo that was placed in Ms. McGinnis’s

personnel file.

The precedent within this Circuit on this precise question is

conflicted. Two D.C. Circuit decisions seem to establish that

placement of reputation-damaging statements in a personnel file

that could be viewed by the public is sufficient publication.

See Doe, 753 F.2d at 1113 n.24; Mazaleski, 562 F.2d at 713. This

precedent is arguably undermined by subsequent D.C. Circuit

decisions, which state that “injury to reputation cannot occur

in the absence of public disclosure of the allegedly damaging

statements.” Orange, 59 F.3d at 1274. In reliance on similar

D.C. Circuit decisions, two Judges of this Court concluded that

a plaintiff cannot state a reputation-plus claim merely by

alleging that the reasons for her termination are publicly

available in a personnel file. See Dave, 926 F. Supp. 2d at 250–

51; De Sousa, 840 F. Supp. 2d at 110. Although the Court holds

that a reputation-plus claim may be stated in this manner, the

fact that district judges have come to differing conclusions

means that it cannot be said that “existing precedent . . .

ha[s] placed the . . . constitutional question beyond debate.”

40
Reichle, 132 S. Ct. at 2093 (quotation marks omitted).

Accordingly, under the reputation-plus theory, Ms. Haines-Walton

is entitled to qualified immunity with respect to the placement

of the Haines-Walton Memo in Ms. McGinnis’s personnel file.

C. Ms. McGinnis’s Claim Against the District

Ms. McGinnis’s claim against the District relies on the same

theories as her claims against the individual defendants. The

Court has already held that Ms. McGinnis stated a claim under

both the stigma and reputation-plus theories. See supra Parts

III.A–B. In order for the District to be liable for those

violations, it “must have acted in accordance with a government

policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official

policy.” Yancey v. District of Columbia, 991 F. Supp. 2d 171,

179 (D.D.C. 2013) (quotation marks omitted). The policy,

moreover, must have been “the moving force behind the

constitutional violation.” City of Canton v. Harris, 489 U.S.

378, 389 (1989) (quotation marks and alterations omitted).

Plaintiff alleges the existence of two policies, each of which

she claims was a moving force behind the constitutional

violation. See First Am. Compl., ECF No. 10 ¶¶ 112–26. First,

she asserts that the OC spray training at the MPD Academy was

done incorrectly—recruits were sprayed directly in the eyes—

pursuant to a District policy or custom (“the OC Spray Policy”).

41
See id. ¶¶ 112–20. Second, Ms. McGinnis alleges that the MPD has

a policy of not providing notice and a hearing to individuals

fired for reputation-damaging or stigmatizing reasons (“the

Hearing Policy”). See id. ¶¶ 121–26.

The District argues that it cannot be held liable because

plaintiff has not alleged a sufficient causal connection between

the OC Spray Policy and any constitutional violation. See Mot.

at 18–20. Nowhere in its motion did the District address

plaintiff’s allegations regarding the Hearing Policy and its

causal connection to the constitutional violation. Moreover,

even though the plaintiff discussed the Hearing Policy in her

opposition brief, Opp. at 17–18, the District did not respond in

its reply brief. Because the District failed to address these

allegations in its motion “and fails to respond to Plaintiff’s

point in its Reply, the Court will deem it abandoned at least

for now.” Ashraf-Hassan v. Embassy of France, 878 F. Supp. 2d

164, 173–74 (D.D.C. 2012); see also Lewis v. United States, No.

90-991, 1990 WL 179930, at *2 (D.D.C. Oct. 29, 1990); cf.

Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 196 (D.C. Cir.

1992) (noting that courts decline to consider arguments newly

raised in a reply brief “given our dependence as an Article III

court on the adversarial process for sharpening the issues for

decision”). Accordingly, for the purposes of this motion, the

Court assumes that plaintiff has adequately alleged the

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existence of the Hearing Policy and its connection to the

constitutional violation. This is sufficient to state a claim

against the District.

IV. Conclusion

For the foregoing reasons, the Court hereby DENIES defendants’

motion. An appropriate Order accompanies this Memorandum

Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
August 28, 2014

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