Rodriguez v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
ANA RODRIGUEZ, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-0757 (ABJ)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
____________________________________)

MEMORANDUM OPINION

Plaintiff Ana Rodriguez brings this action against the District of Columbia and three

individual defendants, Wayne Swann, Debra Crawford, and Daisy Carr, asserting claims for

employment discrimination, retaliation, hostile work environment, failure to accommodate,

intentional infliction of emotional distress, and deprivation of constitutional rights in violation of

42 U.S.C. § 1983, all arising out of her employment with the District of Columbia Department of

Human Services (“DHS”). 2d Am. Compl. [Dkt. # 13]. Defendants have moved to dismiss

plaintiff’s hostile work environment, intentional infliction of emotional distress, and section 1983

claims pursuant to Rule 12(b)(6). Defs.’ Renewed Partial Mot. to Dismiss [Dkt. # 14] (“Defs.’

Mot.”); Defs.’ Mem. of P. & A. in Supp. of Defs.’ Mot. [Dkt. # 14] (“Defs.’ Mem.”). Upon review

of the pleadings and the relevant case law, the Court finds that plaintiff has failed to allege a

deprivation of her constitutional rights to equal protection or due process, as required to state a

claim under 42 U.S.C. § 1983, and so the Court will dismiss Count VI. And because the dismissal

of plaintiff’s lone federal claim divests this Court of its original jurisdiction, the Court will remand

the matter to the Superior Court of the District of Columbia.
 BACKGROUND

Plaintiff identifies herself as Hispanic of Puerto Rican descent. 2d Am. Compl. ¶ 5.

Defendants Carr, Crawford, and Swann are African American. Id. ¶¶ 7–9.

Plaintiff was hired by DHS in July 2010 as a “Grade 5, Staff Assistant/Intern.” Id. ¶ 10.

Plaintiff alleges that during the first few months of her internship, she attended meetings where

defendant Carr, the Human Resources Liaison for DHS, and “other African American managers,”

made racially-based derogatory remarks about plaintiff’s immediate supervisor, Hillary Cairns,

who plaintiff identifies as Caucasian. Id. ¶¶ 9, 11–12. Plaintiff claims that defendant Crawford,

the Deputy for the Family Services Division of DHS, participated in the meetings and did nothing

to stop the comments. Id. ¶ 8, 11. Plaintiff states that she “opposed the racially insensitive remarks

through verbal and body language expressions,” but the comments persisted. Id. ¶ 12.

According to the second amended complaint, in September 2010, plaintiff “was offered a

Grade 9 Staff Assistant position and was scheduled to begin orientation for the position on or

around September 15, 2010.” Id. ¶ 13. She alleges that shortly before the orientation, she attended

another meeting with defendants Carr and Crawford and other African American mangers where

“they again made racially-derogatory comments” about Cairns. Id. ¶ 14. Plaintiff claims that she

“opposed the racially insensitive remarks through . . . expressions of her displeasure” and left

before the meeting ended. Id. Later, Carr “made negative comments” to plaintiff’s immediate

supervisor, Cairns, about plaintiff’s conduct at the meeting, which Cairns then addressed with

plaintiff. Id. ¶ 15. Plaintiff alleges that, “[i]n explaining her actions, [she] disclosed to Cairns

some of the racially derogatory comments that Defendant Carr and other African American

managers” had made. Id. Plaintiff believes that Cairns shared this information with Defendant

2
Crawford, who then discussed it with other managers and staff. Id. She also alleges that, at the

end of that workday, Crawford’s assistant told plaintiff “everyone was mad” with her. Id. ¶ 16.

Plaintiff claims that when she arrived at work the following Monday to begin the

orientation for the Grade 9 Staff Assistant positon, “she learned that Defendant Carr was re-writing

the job description as a pay grade 6, level 4 Clerical Assistant.” Id. ¶ 17. She asserts that at that

time, “several African Americans . . . with less or equal qualification [sic] to [plaintiff] were being

paid at the Grade 9 level in clerical assistant positions.” Id. Plaintiff also alleges that defendant

Carr delayed in completing “the paperwork for [plaintiff’s] new position” and “began treating [her]

in a negative manner, publicly demeaning and intimidating her about the viability of her continued

employment at DHS.” Id. ¶ 19. After her complaint to Cairns, plaintiff states that “she was isolated

in the workplace, cut off from overtime and training opportunities, barred from continuing her

work with the emergency liaison officer and any other opportunity that could have helped her

advance in the workplace.” Id. ¶ 18.

By the end of December 2010, plaintiff alleges that defendant Carr had still not processed

the paperwork for plaintiff’s promotion, and she discussed her “dismay with the lengthy delay”

with defendant Crawford and defendant Swann, the Director of Human Resources for DHS, who

took no steps to address the situation. Id. ¶¶ 7, 20–21. At the end of March 2011, plaintiff states

that defendants Carr and Crawford informed her that her paperwork “would be processed to place

her in the Clerical Assistant position at a Grade 5 with no benefits, but that after a year in the

position she would receive benefits and a pay raise.” Id. ¶ 22. After repeated inquiries to

defendants Carr, Swann, and Crawford about the status of her benefits and raise, plaintiff alleges

that she received the benefits in October 2012, but that she did not receive a pay raise. Id. ¶ 23.

3
 Plaintiff states that on January 25, 2013, she “attended a DHS job fair, applied for and was

offered a Grade 9 Social Services Representative position within the Economic Security

Administration (‘ESA’),” but that on February 6, 2013, she “was notified that she would no longer

be hired” for the position. Id. ¶ 24–25. Plaintiff alleges that an African American co-worker “also

attended the job fair, applied for and was offered a similar position.” Id. ¶ 24.

As a result of what she characterizes as this “pattern of discrimination, retaliation and

hostile work environment,” plaintiff states that “she suffered severe emotional distress and was

forced to take leave from work under the DC Family and Medical Leave Act.” Id. ¶ 26. At the

conclusion of this leave in June 2013, plaintiff states that she requested an accommodation “for

her emotional disability” through August 2013, but defendants “refused to accommodate her.” Id.

¶ 28. Instead, on August 14, 2013, defendants terminated plaintiff’s employment by letter,

effective August 16, 2013. Id. ¶ 29. Plaintiff alleges that “Defendants were required to provide

[her] with advanced notice of the intent to terminate her,” but that she never received such notice

because “Defendants allegedly sent the notice to an incorrect address despite the agency having

[her] correct address.” Id. ¶ 30.

After filing a charge with the Equal Employment Opportunity Commission in April 2013,

id. ¶ 27, plaintiff initiated this lawsuit in the Superior Court of the District of Columbia, and

defendants removed the case to this Court on April 30, 2014. Defs.’ Notice of Removal [Dkt. # 1].

With defendants’ consent, plaintiff filed her second amended complaint on October 24, 2014.

Notice of Consent to Pl.’s Mot. for Leave to Amend [Dkt. # 12]; 2d Am. Compl. It sets out six

counts: Count I – Employment Discrimination on the Basis of Race and/or National Origin in

Violation of the District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401 et seq.;

Count II – Employment Discrimination on the Basis of Retaliation in Violation of the DCHRA;

4
Count III – Retaliation/Hostile Work Environment in Violation of the DCHRA; Count IV –

Disability Discrimination and Failure to Accommodate in Violation of the DCHRA; Count V –

Intentional Infliction of Emotional Distress; and Count VI – Violation of 42 U.S.C. § 1983. 2d

Am. Compl. ¶¶ 34–99. Counts I through V are brought against all defendants; Count VI is only

against the three individual defendants. Id. Defendants have moved to dismiss Counts III, V, and

VI for failure to state a claim, and they also contend that the individual defendants do not qualify

as supervisors under the DCHRA and that Counts I through IV should therefore be dismissed as

to those defendants. Defs.’ Mem. at 7–13. Plaintiff opposed the motion, Pl.’s Opp. to Defs.’ Mot.

[Dkt. # 15] (“Pl.’s Opp.”), and it is now ripe for review.

STANDARD OF REVIEW

“To survive a [Rule 12(b)(6)] 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). In Iqbal,

the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the

tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable

to legal conclusions,” and “[s]econd, only a complaint that states a plausible claim for relief

survives a motion to dismiss.” Id. at 678–79. A claim is facially plausible when the pleaded factual

content “allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678. “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id., quoting Twombly, 550 U.S. at 566. A pleading must offer more than “labels and

conclusions” or a “formulaic recitation of the elements of a cause of action,” id., quoting Twombly,

5
550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id.

In evaluating a motion to dismiss under Rule 12(b)(6), the Court must “treat the

complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that

can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113

(D.C. Cir. 2000) (internal citations omitted), quoting Schuler v. United States, 617 F.2d 605, 608

(D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011).

Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are

unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal

conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion

to dismiss for failure to state a claim, a court may ordinarily consider only “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).

ANALYSIS

The Court begins with Count VI, plaintiff’s only federal claim, because it is the sole basis

for this Court’s jurisdiction. Section 1983 of the 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 of the 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. Therefore, for plaintiff’s section 1983 claim to survive defendants’ motion to

dismiss, she must allege facts sufficient to show that “some person has deprived [her] of a federal

6
right” and that “the person who has deprived [her] of that right acted under color of state or

territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980), citing Monroe v. Pape, 365 U.S. 167,

171 (1961).

As a threshold matter, it is not entirely clear to the Court which federal right plaintiff

intends to invoke in her section 1983 claim. Paragraph 95 of the second amended complaint

alleges that Count VI stems from “Defendants’ discriminatory and retaliatory treatment of Plaintiff

based on her race, national origin and/or disability . . . [in] violation of her rights under the Due

Process Clause of the Fifth Amendment,” and it lists a variety of employment actions taken against

plaintiff as the basis for this claim. 2d Am. Compl. ¶ 95. Defendants, like the Court, presumed

that plaintiff was therefore asserting a section 1983 claim for a violation of her Fifth Amendment

due process rights based on those personnel decisions, including the withdrawn promotions and

plaintiff’s termination. See, e.g., Defs.’ Mem. at 9 (stating that plaintiff has failed to state a Fifth

Amendment due process claim because she has not identified “a divestment of a property

interest”). But plaintiff muddied the waters in her opposition to defendants’ motion when she

stated, “[t]he Fourteenth Amendment’s Equal Protection Clause requires states to treat similarly

situated persons alike,” and “Plaintiff’s Fifth Amendment due process claims are that the

individual defendants discriminated and retaliated against her, thereby depriving her of her right

to be treated equally as her similarly situated co-workers, outside her protected classes (race,

national origin, disability, and engagement in protected activity).” Pl.’s Opp. at 12–13.

It is true that “[t]he Due Process Clause, which is applicable to the District of Columbia,

‘contains an equal protection component prohibiting the United States from invidiously

discriminating between individuals or groups.’” Acosta v. Univ. of D.C., 528 F. Supp. 1215, 1224–

25 (D.D.C. 1981), quoting Washington v. Davis, 426 U.S. 229, 239 (1976), and citing Bolling v.

7
Sharpe, 347 U.S. 497 (1954). Despite the inartful drafting of the second amended complaint, the

Court therefore surmises that plaintiff is attempting to state such a Fifth Amendment equal

protection claim. But in the end, whether Count VI is predicated on a violation of plaintiff’s right

to equal protection or to due process, the Court finds that she has failed to allege that the individual

defendants deprived her of any constitutional interest that would give rise to a viable section 1983

claim. Accordingly, Count VI will be dismissed.

I. Plaintiff has failed to state a plausible section 1983 claim for a violation of her
constitutional right to equal protection.

Plaintiff claims that the individual defendants “depriv[ed] her of her right to be treated

equally as her similarly situated co-workers,” Pl.’s Opp. at 13, when they engaged in

“discriminatory and retaliatory treatment . . . based on her race, national origin and/or disability.”

2d Am. Compl. ¶ 95. But she has not alleged a single fact that would imply any connection

between her membership in a protected class and the employment actions of which she complains,

and so, the Court finds that plaintiff has failed to state a plausible claim that the individual

defendants deprived her of her right to equal protection in violation of section 1983.

To state a claim for intentional discrimination under the Equal Protection Clause, a plaintiff

“must plead and prove that the defendant acted with discriminatory purpose.” Iqbal, 556 U.S. at

676. “[P]urposeful discrimination requires more than ‘intent as volition or intent as awareness of

consequences’; it instead involves a decisionmaker’s undertaking a course of action ‘because of,

not merely in spite of, [the action’s] adverse effects upon an identifiable group.’” Id., quoting

Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979); see also Atherton v. D.C. Office of the

Mayor, 567 F.3d 672, 688 (D.C. Cir. 2009) (reversing district court’s finding that the plaintiff

stated a section 1983 equal protection claim where the complaint’s “spare facts and

8
allegations . . . do ‘not permit the court to infer more than the mere possibility of misconduct’”),

quoting Iqbal, 556 U.S. at 679.

Plaintiff fails to state a plausible claim that the individual defendants took action against

her because of, not merely in spite of, her membership in a protected class. See Iqbal, 556 U.S. at

676. There are no factual allegations in the second amended complaint that connect plaintiff’s

race, national origin, or disability to the adverse employment decisions of which she complains.

Plaintiff makes no express claim that any of the individual defendants’ actions were motivated by

some discriminatory animus. And the Court cannot reasonably infer from any of her allegations

that the individual defendants acted with a discriminatory intent or purpose, see id. at 676,

especially where, as here, the complaint does not even identify which, if any, of the individual

defendants were responsible for the allegedly discriminatory acts at issue. See, e.g., 2d Am.

Compl. ¶¶ 24–25 (stating that plaintiff “was notified that she would no longer be hired for the

Grade 9 Social Services Representative position in ESA,” but failing to identify who made the

decision); id. ¶¶ 29–30 (alleging generally that “Defendants terminated [plaintiff’s] employment”

and that “Defendants allegedly sent the [termination] notice to an incorrect address”).

Plaintiff does state that when she found out that her promotion would be rewritten from

Grade 9 Staff Assistant to Grade 6 Clerical Assistant, “several African Americans . . . with less or

equal qualification [sic] to [plaintiff] were being paid at the Grade 9 level in clerical assistant

positions.” Id. ¶ 17. She also claims that while her offer for the Grade 9 Social Services

Representative position with ESA was later withdrawn, “[o]ne of [her] co-workers (African

American female) also attended the job fair, applied for and was offered a similar position.” Id.

¶¶ 24–25. However, despite mentioning the race of the other recipients of these positions, plaintiff

9
has offered no facts tying the alleged adverse decisions to her race or national origin. 1 Such

conclusory allegations of discrimination, without any supporting information, “stop[] short of the

line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678, quoting

Twombly, 550 U.S. at 557; see also Ekwem v. Fenty, 666 F. Supp. 2d 71, 78–79 (D.D.C. 2009)

(dismissing section 1983 equal protection claim based on age and national origin where the

plaintiff’s “only factual support is the conclusory allegation that [o]lder supervisors and

caseworkers, particularly those of a different national origin, were general[ly] assigned inordinate

numbers of cases and threatened with disciplinary action, that most of the other supervisors were

in charge of five or fewer caseworkers, and that he supervised more caseworkers (eight) than any

other”) (internal quotation marks omitted).

Plaintiff also alleges that defendant Carr made “publicly demeaning and intimidating”

comments to her, 2d Am. Compl. ¶ 19, but not one of those comments centered in any way upon

plaintiff’s status as a member of a protected class:

Carr began treating [plaintiff] in a negative manner . . . including through
making the following comments to [plaintiff]: “you are here to take notes
and not be heard;” “you should be happy with your pay because it could
have been less;” “you will not make more than what I started making in the
government”; “I know Ondarya Hall who is on the HR Board at 441 and
she can change your outcome;; [sic]” and “I’m taking vacation, but you will
be hired before Thanksgiving if I am not busy.”

Id. Rather, as plaintiff herself admitted, they focused on “the viability of [her] continued

employment at DHS.” Id. Such facially-neutral comments cannot support plaintiff’s equal

protection claim.

1 If anything, the second amended complaint appears to indicate that it is plaintiff’s
contention that two of the individual defendants, Carr and Crawford, turned on plaintiff when they
learned that she had revealed to her supervisor what they were saying behind her back. Even if
that is sufficient to state a retaliation claim, being a whistleblower is not a protected class under
the Equal Protection Clause.
10
 Because there is nothing in the second amended complaint connecting plaintiff’s race,

national origin, or disability to the employment actions about which she complains, she has not

shown that the individual defendants violated her right to equal protection, and her section 1983

claim on that ground must fail.

II. Plaintiff has failed to state a plausible section 1983 claim for a violation of her Fifth
Amendment right to due process.

While the Court suspects that plaintiff meant only to state a section 1983 equal protection

claim, in an abundance of caution, it will also examine Count VI as if plaintiff intended it be

brought as a section 1983 Fifth Amendment due process claim. See 2d Am. Compl. ¶ 95

(“Defendants’ discriminatory and retaliatory treatment of Plaintiff based on her race, national

origin and/or disability constitutes a violation of her rights under the Due Process Clause of the

Fifth Amendment to the United States Constitution . . . .”). “The usual due process analysis . . . has

been two-staged: identifying the existence of a constitutionally protected property or liberty

interest and then assessing the appropriate measure of procedural protection due.” Colm v. Vance,

567 F.2d 1125, 1127–28 (D.C. Cir. 1977). Thus, as a threshold matter, in order to state a claim

for the denial of due process, plaintiff must allege that she was deprived of some liberty or property

interest that is protected by the Fifth Amendment.

But the second amended complaint does not identify any such interest. Plaintiff does not

claim that her liberty was infringed. And while she does allege that she was terminated without

adequate notice, 2d Am. Compl. ¶¶ 29–30, in order to establish a property interest in her job at

DHS, plaintiff “must show more than a unilateral expectation that her employment would not be

terminated.” Piroglu v. Coleman, 25 F.3d 1098, 1104 (D.C. Cir. 1994). Rather, “[s]he must show

‘a legitimate expectation, based on rules (statutes or regulations) or understandings (contracts,

11
express or implied), that [s]he would continue in [her] job.’” Id., quoting Hall v. Ford, 856 F.2d

255, 265 (D.C. Cir. 1988).

Here, plaintiff cannot show a legitimate expectation that she would maintain her DHS

position, and therefore, she cannot demonstrate a related property interest in her employment,

because the second amended complaint contains no allegations suggesting that plaintiff was

anything other than an at-will employee. “At-will employees (as opposed to those terminable only

for cause) have no property interest in their employment ‘because there is no objective basis for

believing that they will continue to be employed indefinitely.’” Evans v. District of Columbia,

391 F. Supp. 2d 160, 165 (D.D.C. 2005), quoting Hall, 856 F.2d at 265. So even taking plaintiff’s

allegations as true that “Defendants were required to provide [her] with advanced notice of the

intent to terminate her” and that she did not receive such notice, 2d Am. Compl. ¶ 30, she has

failed to show that she had a property interest in her DHS position sufficient to trigger the

procedural protections afforded by the Fifth Amendment.

Plaintiff similarly cannot state a due process claim based on the two promotion offers that

she alleges were extended to her and then later withdrawn. See id. ¶¶ 13, 17, 24–25. “As a general

matter, of course, a government employee has no property entitlement to a promotion . . . .” Colm,

567 F.2d at 1130. While “[t]here may . . . be situations where such an entitlement would exist as

where ‘a promotion would be virtually a matter of right for example, where it was solely a function

of seniority or tied to other objective criteria . . . ,’ or where there is a ‘common law’ of promotion

sufficient to create a de facto ‘right’ to promotion,” id., quoting Schwartz v. Thompson, 497 F.2d

430, 433 (2d Cir. 1974), nothing in the second amended complaint indicates that such

circumstances are present here.

12
 In fact, the allegations make clear that the promotions were very much uncertain: plaintiff

had been “offered” the positions, and her orientation was scheduled for one of them, but neither

had become final such that it gave rise to a definite property interest. See 2d Am. Compl. ¶¶ 13,

17, 19–20 (acknowledging that defendant Carr had the ability to “re-writ[e] the job description”

for the Clerical Assistant promotion before her orientation was scheduled, and that the paperwork

for the promotion was not processed until months later); id. ¶¶ 24–25 (stating that plaintiff was

informed that “she would no longer be hired” by ESA for the Social Services Representative

promotion, implying that she had not yet been hired for that position). Such an “expectancy” in a

job position is not the same as “a protected property interest” sufficient to state a Fifth Amendment

due process claim. Nat’l Treasury Emp. Union v. Reagan, 509 F. Supp. 1337, 1341 (D.D.C. 1981)

(finding that offers of federal employment did not give rise to protected property interest for due

process purposes where the plaintiffs had received “mere offers of jobs which do not rise to the

level of ‘appointments’ to the federal civil service”); see also Krodel v. Young, No. 80-3183, 1981

WL 27024, at *2 n.1 (D.D.C. July 9, 1981), aff’d, 748 F.2d 701 (D.C. Cir. 1984) (“[W]hile plaintiff

contends he has a property interest in his job, he clearly has no property interest in being promoted,

for that is a mere ‘expectation’ rather than a ‘legitimate entitlement.’”), quoting Bd. of Regents v.

Roth, 408 U.S. 564, 577 (1972).

For those reasons, the Court finds that plaintiff has failed to identify a cognizable due

process interest sufficient to state a section 1983 claim that the individual defendants violated her

Fifth Amendment rights.

III. Plaintiff has failed to allege sufficient facts with respect to the individual defendants.

Finally, whether Count VI is based upon due process or equal protection, it fails for another

reason, at least as to defendants Swann and Crawford: plaintiff has not alleged any facts tending

13
to show that they were the actors responsible for depriving her of a constitutional right. A plaintiff

asserting a section 1983 claim against individual actors “must produce evidence ‘that each [one],

through the official’s own individual actions, has violated the Constitution.’” Elkins v. District of

Columbia, 690 F.3d 554, 564 (D.C. Cir. 2012), quoting Iqbal, 556 U.S. at 676.

Plaintiff alleges only that defendant Swann “did nothing to address the matter” when she

complained to him about her treatment by defendant Carr and the delay in her pay raise and

benefits. 2d Am. Compl. ¶¶ 21, 23. As for defendant Crawford, plaintiff states that Crawford was

present at some of the meetings where the racial comments were made, id. ¶¶ 11, 14, that

Crawford’s assistant told plaintiff that “everyone was mad” at her, id. ¶ 16, that Crawford

discussed plaintiff’s promotion and benefits with her and defendant Carr, id. ¶ 22, and that

Crawford “did nothing” after plaintiff complained about her mistreatment. Id. ¶¶ 20, 23. Not one

of these allegations shows that defendants Crawford and Swann deprived plaintiff of equal

protection or of a protected liberty or property interest. See, e.g., Martin v. District of Columbia,

968 F. Supp. 2d 159, 168 (D.D.C. 2013) (dismissing section 1983 claim because such a claim

“cannot be based on mere knowledge and acquiescence to the behavior of a subordinate,” and

because the complaint contained no allegations that the defendant “otherwise engaged in any

affirmative misconduct”).

It is a somewhat closer case for defendant Carr – plaintiff alleges that it was Carr who

rewrote the job description from a Grade 9 to a Grade 6, and that Carr “stall[ed] the paperwork”

for her new position. 2d Am. Compl. ¶¶ 17, 19. But as discussed above, there are no facts alleged

from which one could infer that Carr’s conduct was based upon plaintiff’s membership in a

protected class, and plaintiff’s desire for a promotion does not rise to the level of a property interest

14
protected by the Fifth Amendment. So plaintiff’s section 1983 claim against Carr cannot survive

defendants’ motion to dismiss.

For those reasons, the Court will grant defendants’ motion in part and dismiss plaintiff’s

section 1983 claim.

IV. The Court declines to exercise supplemental jurisdiction over the remaining claims.

Only plaintiff’s District of Columbia statutory and common law claims remain. “[I]n any

civil action of which the district courts have original jurisdiction, the district courts shall have

supplemental jurisdiction over all other claims that . . . form part of the same case or

controversy . . . .” 28 U.S.C. § 1367(a). The exercise of supplemental jurisdiction is within a

court’s discretion, Shekoyan v. Sibley Int’l, 409 F.3d 414, 423 (D.C. Cir. 2005), and a district court

may decline to maintain such jurisdiction where it has “dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. § 1367(c)(3). In deciding whether to exercise supplemental

jurisdiction in the absence of a federal claim, a court balances considerations of “judicial economy,

convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7

(1988). “Typically, if all federal law claims have been dismissed, the factors counsel against

exercising supplemental jurisdiction.” Trimble v. District of Columbia, 779 F. Supp. 2d 54, 60

(D.D.C. 2011) (declining to exercise supplemental jurisdiction over District of Columbia statutory

and common law claims after dismissal of civil rights claim brought under 42 U.S.C. § 1983).

Here, with the dismissal of Count VI, no claim remains over which the Court has original

jurisdiction. And the Court finds that the balance of the factors weighs against exercising

supplemental jurisdiction over plaintiff’s remaining District of Columbia statutory and common

law claims. Accordingly, the Court will decline to exercise its jurisdiction over the remaining

claims, and it will not reach the other arguments raised in defendants’ motion to dismiss.

15
 CONCLUSION

Because the Court finds that plaintiff has failed to state a plausible claim for the deprivation

of constitutional rights in violation of 42 U.S.C. § 1983, it will grant defendants’ motion to dismiss

in part and dismiss Count VI of the second amended complaint. And because the dismissal of the

lone federal claim divests this Court of jurisdiction, it will remand the case and the remainder of

defendants’ motion to dismiss to the Superior Court of the District of Columbia for further

proceedings.

A separate order will issue.

AMY BERMAN JACKSON
United States District Judge

DATE: July 27, 2015

16