UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
GENE RYAN, )
)
Plaintiff, )
)
v. ) No. 14-cv-0294 (KBJ)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Gene Ryan (“Ryan”) is an employee of the District of Columbia Fire
and Emergency Medical Services Department (“FEMS” or “the Department”). Ryan
claims that he uncovered “widespread waste, fraud, and negligence within [FEMS]”
while acting as the Department’s EMS Oversight Officer, and that shortly after he
publicly disclosed what he perceived to be the Department’s internal deficiencies,
Defendant Kenneth Ellerbe—then Chief of FEMS—removed him from the oversight
position and returned him to his previous position of fulltime Firefighter-Paramedic.
(Am. Compl., ECF No. 5, ¶ 3.) Ryan purportedly persisted in reporting instances of
wrongdoing within FEMS, after which he was allegedly subjected to “baseless charges
and investigations, threats to his person and his career, and other forms of adverse
employment actions[.]” (Id.)
Ryan has filed the instant two-count complaint against Ellerbe and David
Miramontes (the former Assistant Chief and Operational Medical Director of FEMS), in
their official capacities as Department employees, and also against the District of
Columbia (“the District”) (collectively, “Defendants”). (See id. ¶ 1.) Ryan’s complaint
alleges that Defendants unlawfully retaliated against him in violation of the District of
Columbia Whistleblower Protection Act (“DCWPA”), D.C. Code § 1-615.51 et seq. (see
id. ¶¶ 236–42 (Count I)), and that Defendants also deprived him of his right to freedom
of speech in violation of section 1983 of Title 42 of the United States Code and the
First Amendment of the United States Constitution (see id. ¶¶ 243–54 (Count II)).
Ryan agrees that this Court has original federal question jurisdiction only over his First
Amendment claim; he contends that this Court has supplemental jurisdiction over his
DCWPA claim under 28 U.S.C. § 1367(a). (See id. ¶ 4.)
Before this Court at present is Defendants’ motion for summary judgment as to
each of Ryan’s claims. (See Defs.’ Revised Mot. for Summ. J. (“Defs.’ Mot.”), ECF
No. 31; Mem. in Supp. of Defs.’ Revised Mot. for Summ. J. (“Defs.’ Mem.”), ECF No.
31-4.) With respect to Ryan’s federal cause of action, Defendants point out that Ryan
is required to demonstrate “that a municipal ‘policy’ or ‘custom’ violated the First
Amendment” (Defs.’ Mem. at 21), and they maintain that there is “no evidence” that
any “final policy maker” here “acted in such a way to create a policy of retaliating
against employees for speech[,]” or that Ellerbe, the District’s Fire Chief, “even . . . had
the final say with regard to policy” (id.). 1 For the reasons explained below, this Court
agrees with Defendants that Ryan has failed to demonstrate that Ellerbe was a final
policymaker whose actions can be imputed to the District of Columbia, or that the
District adopted a custom or practice that led to the alleged constitutional harms, or that
1
Page-number citations to the documents the parties have filed refer to the page numbers that the
Court’s electronic filing system automatically assigns.
2
the District adopted a policy of inaction or was otherwise deliberately indifferent to the
risk that its agents would violate the constitutional rights of Ryan or others. Therefore,
this Court finds that Ryan has failed to make the requisite showing of section 1983
municipal liability in support of the First Amendment claim, such that summary
judgment must be granted in Defendants’ favor with respect to the sole federal claim in
the instant complaint.
This Court further concludes that the equitable factors of judicial economy,
convenience, fairness, and comity weigh against the retention of this case through the
discretionary exercise of the Court’s supplemental jurisdiction over the remaining state-
law DCWPA claim. Accordingly, Defendants’ motion will be GRANTED IN PART,
and summary judgment will be entered in Defendants’ favor with respect to the First
Amendment claim (Count II), and the remaining state-law claim (Count I) will be
DISMISSED WITHOUT PREJUDICE, leaving Ryan with the option of refiling the
DCWPA claim in the appropriate local court, should he so choose. A separate Order
consistent with this Memorandum Opinion will follow.
I. BACKGROUND
A. Basic Facts And Allegations 2
Ryan alleges he was hired by FEMS as a fulltime Firefighter-Paramedic in
October of 2010 (see Am. Compl. ¶ 18), and that, in March of 2012, at the behest of
Ellerbe, he assumed a new role as the Department’s EMS Oversight Officer (see id.
¶¶ 30, 32). 3 In the EMS Oversight Officer position, Ryan was “responsible for
2
These facts are undisputed, unless otherwise noted.
3
Defendants argue that the EMS Oversight Officer position was never formally created or finalized, in
part because Ellerbe lacked the authority to create a new position at the Department or to enter into an
3
observing and reviewing EMS service delivery in the field” and “identify[ing] and
recommend[ing] solutions in order to improve the Department’s delivery of service.”
(Pl.’s Revised Statement of Material Facts in Genuine Dispute (“Pl.’s Statement”), ECF
No. 33-2, ¶ 6 (internal quotation marks and citation omitted).) In October of 2012,
shortly after Ryan presented to FEMS leadership and staff his findings concerning
problems with the Department’s operations (see id. ¶ 62), Ellerbe suspended the EMS
Oversight Officer position until “a permanent Oversight Officer c[ould] be selected
through the official District of Columbia Department of Human Resources process”
(Email from Kenneth Ellerbe to Gene Ryan et al. (Oct. 13, 2012), Ex. 23 to Pl.’s Opp’n,
ECF No. 33-5, at 140). Despite this suspension of the position, Ryan nonetheless
continued to report on what he perceived to be deficiencies within the Department.
(See, e.g., Pl.’s Statement ¶¶ 75, 83, 108, 127.)
Ryan alleges that Ellerbe, Miramontes, and other FEMS management harassed
him and retaliated against him due to the various reports and disclosures that he made,
including by, inter alia, removing him as the EMS Oversight Officer (see Am. Compl.
¶¶ 3, 89); denying his requests to attend education and other training programs (see id.
¶¶ 65, 95, 106–10, 166–67, 201–04, 226–28); failing to promote or transfer him (see id.
¶¶ 91–94, 100–01, 119–21, 126–33, 148–49, 205–06, 210–13); requiring him to work
employment contract with Ryan. (See Defs.’ Mem. at 18–19.) Ryan counters that the position was
formally created, and he argues that, at the very least, whether or not the position formally existed is a
dispute of a material fact. (See Pl.’s Opp’n at 34–36.) However, because the resolution of this issue is
not material to the conclusion the Court reaches in this Memorandum Opinion, the Court need not
resolve this question. Cf. Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d
492, 496 (D.C. Cir. 2016) (“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986))).
4
shifts in excess of 36 consecutive hours (see id. ¶¶ 151–53, 230); threatening him
physically (see id. ¶ 155); failing to provide him with proper pay (see id. ¶¶ 98–99,
234–35); and subjecting him to accusations, investigations, and disciplinary actions (see
id. ¶¶ 49, 111–17, 134–47, 168–71, 196–97, 214–22). Ryan also claims that he reported
the harassment and retaliation to Ellerbe and others within FEMS over a period of
months. (See, e.g., id. ¶¶ 66–70, 164–65, 180–84, 189–95, 199.)
B. Procedural History
Ryan filed the instant amended complaint against Defendants on June 16, 2014.
(See generally Am. Compl.) As to the complaint’s sole federal cause of action, Ryan
alleges that his disclosures of the Department’s purported deficiencies constituted a
lawful exercise of his “First Amendment right to speak on matters of public concern”
(id. ¶ 245; see also id. ¶ 246), and that “Defendants violated [his] First Amendment
[r]ight[]” of free speech (id. ¶ 250) by taking “retaliatory actions against [him] for
speaking publicly about [the Department’s] mismanagement, fraud, and violations of
laws” (id. ¶ 249).
The parties have completed discovery, and Defendants have now filed a motion
for summary judgment with respect to all of Ryan’s claims. (See generally Defs.’ Mot.;
Defs.’ Mem.) As relevant here, Defendants argue that, even assuming arguendo that
Ryan’s disclosures were protected speech, and that his First Amendment rights were
violated as a result of the disclosures, the District cannot be held liable under 42 U.S.C.
§ 1983 because Ryan failed to prove that a “municipal ‘policy’ or ‘custom’” caused
those injuries, or that any “final policy maker” was involved in the alleged violations.
(Defs.’ Mem. at 21.) Ryan counters that Ellerbe is a final policymaker, who “adopted
the policy that was the driving force behind the retaliation [Ryan] experienced
5
following the exercise of his First Amendment right to free speech[,]” “had knowledge
of [Ryan’s] disclosures[,]” and “knew that a series of disciplinary actions were being
taken against [Ryan.]” (Pl.’s Mem. in Opp’n to Defs.’ Revised Mot. for Summ. J.
(“Pl.’s Opp’n”), ECF No. 33, at 52.) Ryan further argues that, even though Ellerbe
“[had] knowledge of the disciplinary actions repeatedly being taken against [Ryan],”
Ellerbe “did nothing” and actually “condoned the repeated attacks against [Ryan and]
fail[ed] to intervene in any way.” (Id.) Thus, Ryan concludes, “[a] reasonable jury
could find that Chief Ellerbe, though he may not have issued the disciplinary actions
against [Ryan], was implicit [sic] in permitting other Department supervisors to
retaliate against [Ryan] following his exercising his First Amendment rights.” (Id.)
Defendants’ motion for summary judgment is now ripe for this Court’s review.
(See generally Defs.’ Mot.; Defs.’ Mem.; Pl.’s Opp’n; Defs.’ Reply to Pl.’s Revised
Opp’n to Defs.’ Revised Mot. for Summ. J., ECF No. 37.)
II. LEGAL STANDARDS
A. Summary Judgment
Federal Rule of Civil Procedure 56 provides that a court shall grant summary
judgment “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A
fact is material if it ‘might affect the outcome of the suit under the governing law,’ and
a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692
(D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
To make this determination, courts must review all evidence in the light most favorable
6
to the nonmoving party, and are required to draw all justifiable inferences in the
nonmoving party’s favor and to accept the nonmoving party’s evidence as true. See
Anderson, 477 U.S. at 255. However, the nonmoving party must establish more than
the “mere existence of a scintilla of evidence” in support of its position. Id. at 252.
Nor can the nonmoving party rely on allegations or conclusory statements; instead, it
must present specific facts that would enable a reasonable jury to find it its favor. See
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
B. Section 1983 Actions And Municipal Liability
In Count II of his complaint, Ryan contends that Defendants are liable under 42
U.S.C. § 1983 for violations of his First Amendment rights. (See Am. Compl. ¶¶ 243–
54.) Notably, a section 1983 claim against municipal employees in their official
capacities “is the equivalent of a suit against the municipality itself[,]” Brown v. Corr.
Corp. of Am., 603 F. Supp. 2d 73, 78 (D.D.C. 2009); therefore, even with respect to the
claims against Ellerbe and Miramontes, Ryan “must establish the municipality’s
liability for the alleged conduct[,]” Miller v. City of St. Paul, 823 F.3d 503, 506 (8th
Cir. 2016) (emphasis added) (citation omitted); see also Evangelou v. District of
Columbia, 901 F. Supp. 2d 159, 168 n.4 (D.D.C. 2012) (“Where the suit has been filed
against the employer (here the District of Columbia) and one or more employees in
their official capacities . . . the claims against the employees merge with the claim
against the employer.” (emphasis and citation omitted)).
As a general matter, a prima facie case under section 1983 “requires a showing
that a person acting under the color of state law caused a deprivation of a constitutional
right or federal law.” Sledge v. District of Columbia, 63 F. Supp. 3d 1, 26 (D.D.C.
2014) (citing Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690–91 (1978)).
7
Under Monell and its progeny, a municipality such as the District “may be liable for
such deprivations only if, first, the plaintiff establishes an underlying violation of the
Constitution or other federal law; and second, the plaintiff demonstrates that a basis for
municipal liability exists.” Id.
With respect to the second prong of the inquiry, a municipality cannot be held
liable under section 1983 through respondeat superior or vicarious liability. See id. at
26–27. Instead, “a city can be held liable under Section 1983—either directly or in its
role as a supervisor of the employees who undertake unconstitutional actions—only
when its own policy or custom inflicts the injury.” Id. at 27 (emphasis in original)
(alterations, internal quotation marks, and citation omitted). Thus, to hold a
municipality liable under section 1983 for an alleged constitutional violation, a plaintiff
must demonstrate “that a custom or policy of the municipality caused the violation.”
Blue v. District of Columbia, 811 F.3d 14, 18 (D.C. Cir. 2015) (internal quotation marks
and citation omitted). This means that the record must show an “affirmative link”
between the alleged municipal policy and the asserted constitutional violation, “such
that [the] municipal policy was the moving force behind the constitutional violation.”
Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (internal quotation
marks and citation omitted).
To this end, “[t]here are four basic categories of municipal action a plaintiff
may rely [up]on to establish municipal liability.” Sledge, 63 F. Supp. 3d at 27
(alterations omitted). These are: (1) “the explicit setting of a policy by the government
that violates the Constitution”; (2) “the action of a policy maker within the
government”; (3) “the adoption through a knowing failure to act by a policy maker of
8
actions by his subordinates that are so consistent that they have become custom”; or
(4) “the failure of the government to respond to a need (for example, training of
employees) in such a manner as to show deliberate indifference to the risk that not
addressing the need will result in constitutional violations.” Blue, 811 F.3d at 19
(internal quotation marks and citation omitted). Although Ryan has not identified the
category of municipal conduct that caused the First Amendment violations he alleges,
the Court will read Ryan’s complaint liberally, and will assume that he intends to
establish that categories (2), (3), and (4) were at play in the context of the First
Amendment claim that he has asserted here.
III. ANALYSIS
Ryan contends that the District is liable under section 1983 for violating his First
Amendment right to free speech based on unlawful retaliation allegedly perpetrated by
FEMS management, including Ellerbe, Miramontes, and a slew of other FEMS
supervisors. (See Am. Compl. ¶¶ 243–54.) Ryan’s section 1983 claim is against the
District and Ellerbe and Miramontes in their official capacities; hence, it is a municipal
liability claim. See Monell, 436 U.S. at 690 n.55; see also Spencer v. Knapheide Truck
Equip. Co., 183 F.3d 902, 905 (8th Cir. 1999) (“[B]ecause [the] section 1983 suit is
against the members of the Board [of Police Commissioners] in their official capacities,
it must be treated as a suit against the municipality.” (internal citation omitted));
Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996) (“A section 1983
suit for damages against municipal officials in their official capacities is . . . equivalent
to a suit against the municipality itself.” (internal citations omitted)). Therefore, it is
clear beyond cavil that, “[t]o maintain his claim against the District of Columbia and
9
the individuals sued only in their official capacities, [Ryan] must plead sufficient facts
to establish municipal liability.” Hunter v. Corr. Corp. of Am., No. 04-2257, 2006 WL
463207, at *1 (D.D.C. Feb. 24, 2006); see also Davis v. Stratton, 360 F. App’x 182, 183
(2d Cir. 2010) (“[T]o obtain relief against the municipal officers, sued in their official
capacity under 42 U.S.C. § 1983, [a plaintiff] must show that there existed a municipal
policy that was being enforced to deny him his constitutional rights.”).
For the reasons explained fully below, this Court concludes that Ryan has failed
to adduce sufficient evidence to establish that the alleged retaliatory acts resulted from
any custom or policy of the District under any of the “four basic categories of
municipal action a plaintiff may rely on to establish municipal liability[,]” Sledge, 63 F.
Supp. 3d at 27 (alterations, internal quotation marks, and citations omitted), and thus,
Defendants are entitled to summary judgment on Ryan’s constitutional claim. And in
the absence of this federal claim, various equitable considerations weigh against the
Court’s exercise of supplemental jurisdiction over Ryan’s DCWPA claim.
A. Ryan Has Not Established A Basis For Municipal Liability Against the
District
Ryan’s amended complaint is devoid of any reference to a “custom” or “policy”
whatsoever, and it does not allege—even in conclusory terms—that it was a custom or
policy of the District that was the moving force behind Ryan’s injuries. That deficiency
alone can “doom[] his municipal liability claim.” Winder v. Erste, 905 F. Supp. 2d 19,
31 (D.D.C. 2012). But the parties here have passed the pleading stage, and Defendants
maintain that “there is no evidence that the Department head, Fire Chief Ellerbe, acted
in such a way to create a policy of retaliating against employees for speech or even that
10
he had the final say with regard to policy.” (Defs.’ Mem. at 21 (emphasis added).)
This Court’s review of the record confirms this proposition.
1. Ellerbe Did Not Possess Authority Sufficient To Create Any Final
District Policy That Caused Ryan’s Alleged Harms
Ryan’s most lucid argument for why a policy of the District was the moving
force behind the First Amendment violations he alleges—raised for the first time in his
opposition brief—is that Ellerbe “can reasonably be considered as a policymaker by
virtue of his utter disregard of the personnel policies in place and his decisions to let
management, including Dr. Miramontes, take disciplinary actions that fly in the face of
established guidance and have no legitimate basis in order to retaliate against Plaintiff.”
(Pl.’s Opp’n at 53.) Thus, Ryan appears to believe that a municipal employee’s alleged
actions and decisions can themselves qualify the employee as a “policymaker” for
municipal liability purposes, but he provides no authority for this contention—which is
not surprising, as it is not the law.
Rather, “whether a particular official has final policymaking authority is a
question of state law[,]” and “the identification of those officials whose decisions
represent the official policy of the local governmental unit” concerning the alleged
unconstitutional action is “a legal question to be resolved by the trial judge before the
case is submitted to the jury.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
(1989) (emphasis, internal quotation marks, and citation omitted). Courts have long
concluded that “a final decision maker typically must be at least an agency head or the
governing body of an agency.” Coleman v. District of Columbia, 828 F. Supp. 2d 87,
91 (D.D.C. 2011) (internal citations omitted). Moreover, it is clear that the “authority
to make municipal policy is the authority to make final policy specific to the tortious
11
conduct[,]” but “[i]f an official’s discretionary decisions are constrained by policies not
of that official’s making, then those policies—rather [than] the official’s departure from
them—are the act of the municipality.” Byrd v. District of Columbia, 807 F. Supp. 2d
37, 75 (D.D.C. 2011) (emphasis in original) (internal citations omitted). Furthermore,
when determining whether a municipal employee—even the head of an agency—has
final policymaking authority, courts in this District look for “specific provisions in the
D.C. Code” that “grant[] the director authority to promulgate rules for the
administration of his respective department with regard to the [specific] conduct at
issue.” Id.
Ryan does not cite any provision of the D.C. Code, or any other evidence, to
support his bald assertions that Ellerbe “created a policy of retaliating against
employees for exercising their right to free speech” and “had a final say with regard to
that policy.” (Pl.’s Opp’n at 53.) The most likely reason for Ryan’s omission of any
such evidence is that none exists; indeed, to the contrary, it appears that Ellerbe did not
possess final policymaking authority with regard to the alleged retaliatory acts. Chapter
4 of Title 5 of the D.C. Code (which establishes many of the rules and regulations that
govern FEMS) does not delegate to the Fire Chief the kind of broad employment,
personnel, and discipline-related policymaking authority that courts have found
necessary in order for the head of an agency to qualify as a final policymaker for
purposes of municipal liability. In fact, that authority is specifically reserved
elsewhere: section 5-402 of the D.C. Code expressly empowers the District’s Mayor to
“appoint, assign to such duty or duties as he may prescribe, promote, reduce, fine,
suspend, with or without pay, and remove all officers and members of [FEMS],
12
according to [] rules and regulations” that “the Council of the District of Columbia, in
its exclusive jurisdiction and judgment[,]” establishes. D.C. Code § 5-402(a).
Other provisions of Chapter 4 further reveal the broad authority that the Mayor
and the D.C. Council have over personnel-related matters within the D.C. Fire
Department. See, e.g., id. § 5-402(a-1)(1) (the Mayor, with the advice and consent of
the Council, shall appoint the Fire Chief); id. § 5-405 (the Mayor establishes the
workweek and hours for FEMS employees); id. § 5-406 (the Mayor prescribes the rules
and regulations by which funds are to be expended for uniforms and other equipment);
id. § 5-409.01 (the Mayor is authorized to provide for the transfer between positions of
certain FEMS employees). Thus, the D.C. Fire Chief lacks the authority that the D.C.
Code broadly delegates to the Mayor, which is the kind of authority that is necessary
for a municipal employee to qualify as a final policymaker. See Banks v. District of
Columbia, 377 F. Supp. 2d 85, 91 (D.D.C. 2005) (finding that the Director of the
Department of Mental Health was a final policymaker because the D.C. Code expressly
granted her broad powers to oversee and administer the department, to hire and fire
employees, and to make all manner of other personnel decisions).
Accordingly, “[c]entral” to this Court’s analysis of Ryan’s First Amendment
municipal liability claim is “whether the D.C. Code specifically grants authority to
[Ellerbe] to promulgate administrative rules . . . or policies and procedures[,]” or
whether his “discretionary decisions are constrained by policies not of [his own]
making.” Jones v. District of Columbia, 241 F. Supp. 3d 81, 88 (D.D.C. 2017) (internal
quotation marks and citation omitted); see also Allen-Brown v. District of Columbia, 54
F. Supp. 3d 35, 42 (D.D.C. 2014) (finding that the Director of the Metropolitan Police
13
Department’s Medical Services Branch was not a policymaker for municipal liability
purposes because “[t]here [was] nothing in the record to indicate that [the Director]
makes broad departmental policy decisions at all”). And in contrast to the broad
authority that the D.C. Code delegates to the Mayor, including the ability to make a
broad swath of FEMS personnel decisions, see, e.g., D.C. Code § 5-402(a), the
delegation of such personnel-related authority to the Fire Chief is narrow and limited,
see, e.g., id. § 5-402(b)(1) (“The Fire Chief shall recommend to the Director of
Personnel criteria for Career Service promotions and Excepted Service appointments to
Battalion Fire Chief and Deputy Fire Chief that address the areas of education,
experience, physical fitness, and psychological fitness.”). Ryan has not only failed to
identify any portion of the D.C. Code that specifically grants authority to the FEMS
Fire Chief to promulgate final personnel policies, but also concedes that there were
other “personnel policies in place” that should have constrained Ellerbe’s discretion
(Pl.’s Opp’n at 53), and that the alleged retaliatory actions “were not done in
accordance with Departmental policy” (Pl.’s Resp. to Defs.’ Revised Statement of
Undisputed Material Facts, ECF No. 33-1, ¶ 30). Unfortunately for Ryan, this
concession completely undermines any finding that it was the District’s policies that
were the driving force behind the alleged constitutional violations. See Pembaur v. City
of Cincinnati, 475 U.S. 469, 483 n.12 (1986) (Brennan, J., plurality opinion)
(distinguishing an employment policy “set by the Board of County Commissioners”
from the County Sheriff’s unconstitutional exercise of authority delegated to him by the
Board); Greensboro Prof’l Fire Fighters Ass’n, Local 3157 v. City of Greensboro, 64
F.3d 962, 966 (4th Cir. 1995) (“[I]t is the municipality’s policies, not the subordinate’s
14
departures from them, that must underlie municipal liability[.]” (internal quotation
marks and citations omitted)).
Ryan nonetheless argues that Ellerbe should be deemed a policymaker under
Steinberg v. District of Columbia, 901 F. Supp. 2d 63 (D.D.C. 2012). (See Pl.’s Opp’n
at 52–53.) The Steinberg court addressed whether the Fire Chief’s refusal to implement
the D.C. Office of Employee Appeals’s express administrative order to reinstate the
plaintiff’s employment and award him back pay could be the basis for municipal
liability, and the court held that, “[w]hile the Fire Chief is not a policymaker when he
acts in accordance with personnel policies and administrative decisions, he is a
policymaker when he exercises the inherent power of his office to resist their
implementation.” Steinberg, 901 F. Supp. 2d at 71 (second emphasis added) (internal
citation omitted). But, unlike in Steinberg, there is no express order to undertake a
particular course of action that Ellerbe intentionally flouted to Ryan’s detriment here.
Thus, even assuming that Steinberg accurately reflects the contours of the law regarding
municipal liability, Steinberg is clearly distinguishable based on its reliance on an
official’s affirmative disregard of specific municipal policies, and that case cannot be
read to pertain to an employee’s mere discretionary diversion from the established
personnel policies of the municipality without running afoul of core principles of
municipal liability. See, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988)
(explaining that the “mere exercise of discretion by an employee” is not sufficient to
establish municipal liability for a constitutional violation, because otherwise “the result
would be indistinguishable from respondeat superior liability[,]” which Monell
rejected); Tabb v. District of Columbia, 605 F. Supp. 2d 89, 96 (D.D.C. 2009) (“[A]
15
municipality is not liable under § 1983 when the officials responsible for the alleged
constitutional deprivation possessed only the authority to make employment decisions
(i.e.[,] transferring or terminating an agency employee), not the authority to set
employment policy for the City.” (emphasis in original) (alterations, internal quotation
marks, and citation omitted)).
Other decisions within this District and elsewhere confirm that the Chief of
FEMS is generally not held to be a final policymaker for purposes of alleged municipal
liability regarding personnel decisions. In Coleman v. District of Columbia, 828 F.
Supp. 2d 87 (D.D.C. 2011), for example, the court concluded that the Fire Chief did not
act as a final policymaker when he adopted the recommendation of a FEMS Fire Trial
Board that the plaintiff should be demoted and subjected to a psychological
examination, and then subsequently fired the plaintiff when she failed to complete the
examination. Id. at 90, 92. The court there held that the Fire Chief was not a final
policymaker for municipal liability purposes, because “the D.C. Code gives no specific
grant of authority to the Fire Chief to set final policy” and, “[i]ndeed, the Mayor and
the City Council have expressly reserved supervisory powers to themselves.” Id. at 92;
see also Sutton v. Billings, No. 16-cv-3364, 2017 WL 2335555, at *9 (D. Md. May 26,
2017) (observing that, “even if [FEMS] Chief Dean were responsible for the Notice
being sent to the wrong address and the subsequent suspension, plaintiff does not allege
that Chief Dean was a final decision maker with respect to personnel decisions”);
Hamilton v. District of Columbia, 852 F. Supp. 2d 139, 150 (D.D.C. 2012) (“The
relevant statute in this case, D.C. Code § 5-402(a), specifically grants the Mayor of the
District of Columbia the authority to make personnel decisions with respect to [FEMS].
16
Because the D.C. Code does not grant either plaintiffs’ supervisor or Deputy Fire Chief
Gary Palmer final policymaking authority, their actions do not subject the District to
§ 1983 liability.” (citing Coleman, 828 F. Supp. 2d at 91–92)).
In short, while Ellerbe (and his designees) were undoubtedly authorized to
discipline Ryan and to make some of the personnel decisions relating to his
employment, there is simply nothing in Ellerbe’s job duties as identified in the D.C.
Code or in the limited evidence Ryan proffers that supports the conclusion that Ellerbe
had the authority to set new employment policy for the District. As a result, Ellerbe’s
alleged actions cannot be imputed to the District for the purpose of municipal liability.
2. The Record Contains No Evidence That The District Had A Policy
Or Custom Of Retaliating Against Protected First Amendment
Speech
Setting aside the question of whether or not Ellerbe was a final policymaker such
that his alleged actions in regard to Ryan’s employment qualify as District policy for
the purpose of municipal liability, Ryan’s section 1983 claim might also be sustained if
the record evidence demonstrates that the alleged constitutional violation is so
commonplace that it can reasonably be deemed a customary practice of the District.
See Blue, 811 F.3d at 19. When a plaintiff seeks to establish municipal liability in the
absence of an explicit policy, he must allege “concentrated, fully packed, precisely
delineated scenarios as proof that an unconstitutional policy or custom exists.” Page v.
Mancuso, 999 F. Supp. 2d 269, 284 (D.D.C. 2013) (internal quotation marks and
citation omitted). “To clear this high hurdle, plaintiffs ordinarily couch ‘custom or
practice’ liability on allegations of practices so persistent and widespread as to
practically have the force of law.” Id. (internal quotation marks and citation omitted);
see also Coleman, 828 F. Supp. 2d at 92 (“This must be a persistent, pervasive practice
17
of the city officials, which although not officially adopted, was so common and settled
as to be considered a custom or policy.” (alteration, internal quotation marks, and
citation omitted)).
This Court easily concludes that Ryan has failed to provide enough evidence to
demonstrate that the District had a municipal custom or policy of retaliating against
employees for exercising their First Amendment rights. Indeed, Ryan makes only the
conclusory allegation that a policy of retaliating against employees for exercising their
First Amendment right to free speech exists (see, e.g., Pl.’s Opp’n at 53), and he has not
“pointed to any other employee who suffered similar retaliation[,]” nor has he
demonstrated that the alleged retaliatory actions were widespread or pervasive. Jones
v. Quintana, 658 F. Supp. 2d 183, 197 (D.D.C. 2009); see also DuBerry v. District of
Columbia, 582 F. Supp. 2d 27, 39 (D.D.C. 2008) (finding insufficient evidence of a
widespread custom, practice, or policy where the plaintiff failed to “produce[] any
evidence that the Department’s alleged discriminatory employment practices impacted a
single employee or prospective employee other than himself”). In fact, Ryan does not
even allege that “some, most, or all FEMS members making protected speech
experience unlawful deprivations of their first amendment rights[,]” Coleman, 828 F.
Supp. 2d at 93–94 (internal quotation marks and citation omitted), much less provide
any evidence to this effect. See Page, 999 F. Supp. 2d at 285 (“[The plaintiff] provides
no information about whether D.C. jail officials subjected any other individuals to strip
searches in the absence of reasonable suspicion in the manner he describes, nor does he
even allege that the D.C. jail had been conducting these strip searches on a regular
basis.” (emphasis in original)).
18
To be sure, “no hard and fast rule exists for the number of examples” of similar
unconstitutional actions against other employees a plaintiff must provide in order for a
court “to find it plausible that FEMS undertook a consistent policy of [enabling or
encouraging constitutional] violations,” but this Court “is confident that one
example”—which is still one more than Ryan has provided—“coupled with a
conclusory allegation[,] is insufficient[.]” Coleman, 828 F. Supp. 2d at 93; see also
Sheller-Paire v. Gray, 888 F. Supp. 2d 34, 40 (D.D.C. 2012) (finding insufficient
allegations of a custom where the plaintiff cited “only four incidents where fire
department management allegedly failed to respond to his requests to provide more
information on and to investigate his being placed on leave”).
3. The Record Contains No Evidence That The District Was
Deliberately Indifferent To A Pattern Of Unconstitutional Conduct
Nor has Ryan taken any steps toward establishing that the District failed “to
respond to a need . . . in such a manner as to show deliberate indifference to the risk
that not addressing the need will result in constitutional violations.” Blue, 811 F.3d at
19 (internal quotation marks and citation omitted). Deliberate indifference municipal
liability occurs when municipal policymakers “knew or should have known of a risk
that the complained-of violation would occur, but did nothing to prevent that violation.”
Sledge, 63 F. Supp. 3d at 28 (citation omitted). The deliberate indifference theory of
municipal liability mandates a “‘stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.’” Id.
(quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)).
To the extent that Ryan argues Ellerbe “did nothing” to stop the alleged
retaliatory actions, “condoned” those actions, and “fail[ed] to intervene in any way”
19
(Pl.’s Opp’n at 52), neither Ellerbe nor any of the other individuals at FEMS were
policymakers whose conduct can be attributed to the District for municipal liability
purposes. (See supra Part III.A.1.) And Ryan has not pointed to any evidence that the
District, the Mayor, the Council, or anyone with final policymaking authority knew or
should have known that Ryan’s constitutional rights were being violated. 4 Ryan
certainly has not shown that the District was “faced with actual or constructive
knowledge that its agents [] probably violate constitutional rights[,]” and nonetheless
“adopted a policy of inaction[,]” as is required for a municipality to be held liable based
on its deliberate indifference. Hamilton, 852 F. Supp. 2d at 150 (alterations, internal
quotation marks, and citation omitted).
Ryan’s failure to point to any retaliatory acts other than those allegedly visited
upon himself is another reason why he has not successfully pinned deliberate
indifference municipal liability on the District. As a general matter, “proof of a single
incident of unconstitutional activity is not sufficient to impose” municipal liability
under section 1983, and “simply citing to [the] plaintiff’s own experiences does not
demonstrate that [he] was the victim of a policy or custom that caused [him] to suffer
4
Notably, Ryan does not argue that his public testimony of February 24, 2014, before the D.C. City
Council’s Committee on the Judiciary and Public Safety should have put the District on notice of the
alleged constitutional violations. Ryan purportedly testified about the “harassment and retaliation he
had suffered as a result of raising concerns within the Department” (Pl.’s Statement ¶ 145), and he
asserted that he was being “punish[ed], discredit[ed], and silence[d]” (Draft Testimony of Gene Ryan,
Judiciary and Public Safety Hearing (Feb. 24, 2014), Ex. 77 to Pl.’s Opp’n, ECF No. 34-4, at 3). But
disclosing concerns about alleged retaliation and abuse is “far different from [the plaintiff] informing
the D.C. City Council that FEMS suppresses its employees’ constitutional rights.” Coleman, 828 F.
Supp. 2d at 94. And this is especially so given that the purpose of the hearing was to “discuss whether
the [named] agencies have protocols and procedures in place that enable an effective and timely
coordinated response to any emergency anywhere in the District[,]” Council for the District of
Columbia, Judiciary and Public Safety Hearing on UOC, FEMS, and MPD (Feb. 24, 2014),
http://dccouncil.us/events/judiciary-and-public-safety-hearing-on-uoc-fems-and-mpd—a topic that was
not even remotely related to Ryan’s statements about the circumstances surrounding his employment.
20
injury.” Sledge, 63 F. Supp. 3d at 28 (alterations, internal quotation marks, and
citations omitted). This is primarily because “[t]he alleged unconstitutional conduct
must be pervasive enough to be so common and settled as to be considered a custom or
policy.” Id. (internal quotation marks and citation omitted). Furthermore, unless the
plaintiff “demonstrate[s] a pattern of injuries in order to establish municipal culpability
and causation[,]” it could be unfair to impose municipal liability due to the lack of
“notice to the municipal decisionmaker, based on previous violations of federally
protected rights, that his approach is inadequate.” Hamilton, 852 F. Supp. 2d at 151
(internal quotation marks and citation omitted); see also Poindexter v. D.C. Dep’t of
Corr., 891 F. Supp. 2d 117, 121–23 (D.D.C. 2012) (finding no deliberate indifference
where the plaintiff failed to allege “a purposeful lack of response on the part of the
District” to the risk of the deprivation of others’ constitutional rights “outside of
purported wrongful conduct as to him,” and failed to “point to any behavior on the part
of the District toward [others] that . . . evidence[d] a deliberate disregard for their
constitutional rights”).
The bottom line is this: there is no evidence in the instant record that the
District has “adopt[ed] a policy of inaction” in the face of knowledge that FEMS
officials routinely retaliate against the protected speech of that Department’s
employees. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).
Consequently, Ryan has also failed to establish deliberate indifference municipal
liability for the purpose of sustaining his section 1983 claim.
21
B. Equitable Considerations Weigh Against The Exercise Of The Court’s
Supplemental Jurisdiction Over The Remaining State-Law Claim
Having concluded that Defendants are entitled to summary judgment with respect
to Ryan’s constitutional claims based on his failure to demonstrate that any custom or
policy of the District caused his alleged First Amendment injuries, Ryan’s sole
remaining claim sounds in state, not federal, law. This Court has jurisdiction over the
DCWPA claim that Ryan has brought under D.C. Code § 1-615.51 et seq. (Count I),
because that claim forms “part of the same case or controversy” as the federal claim
over which the Court has original jurisdiction. 28 U.S.C. § 1367(a). However, given
that summary judgment must be entered in the District’s favor on the federal claim, this
Court must decide whether to “decline to exercise supplemental jurisdiction” over the
state-law claim. Id. § 1367(c)(3); see also Ali Shafi v. Palestinian Auth., 642 F.3d
1088, 1097 (D.C. Cir. 2011) (“Whether to retain jurisdiction over pendent . . . claims
after the dismissal of the federal claims is a matter left to the sound discretion of the
district court[.]” (internal quotation marks and citation omitted)).
“General equitable factors guide the decision whether to exercise supplemental
jurisdiction, including judicial economy, convenience, fairness, and comity.” Pollard v.
District of Columbia, 191 F. Supp. 3d 58, 82 (D.D.C. 2016) (internal quotation marks
and citation omitted). As the Supreme Court has noted, “in the usual case in which all
federal-law claims are eliminated before trial, the balance of factors to be considered
. . . will point toward declining to exercise jurisdiction over the remaining state-law
claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Moreover,
“the D.C. Circuit has cautioned that the Court has ‘an obligation to exercise its
discretion to remand the case to the District of Columbia courts once the federal
22
question, like Elvis, ha[s] left the building.’” Kyle v. Bedlion, 177 F. Supp. 3d 380, 400
(D.D.C. 2016) (alteration in original) (quoting Araya v. JPMorgan Chase Bank, N.A.,
775 F.3d 409, 418–19 (D.C. Cir. 2014)).
This Court has determined that the applicable factors weigh in favor of declining
to exercise supplemental jurisdiction over Ryan’s remaining claim. To begin with, this
Court has reached its conclusion regarding the need to award summary judgment to the
District on the federal claim without considering the facts and circumstances
underpinning Ryan’s DCWPA allegations. Indeed, although this case has had a
protracted procedural history in federal court, this Court has developed no familiarity
with the issues presented by Ryan’s state-law claim, nor has it invested time and
resources on that claim, because there is no overlap between the arguments and
evidence supporting Ryan’s DCWPA claim and the municipal liability issues that his
federal claim presents. Judicial economy therefore does not weigh against dismissal.
See Shekoyan v. Sibley Int’l, 409 F.3d 414, 424 (D.C. Cir. 2005) (affirming the district
court’s decision not to exercise supplemental jurisdiction where the litigation had
proceeded for four years in the district court prior to the dismissal of the plaintiff’s
federal claims, and where the district judge had served for 18 years as a D.C. Superior
Court judge and was familiar with local District of Columbia law).
Considerations of comity also point in favor of allowing Ryan to pursue his
claim in state court. See Steinberg v. District of Columbia, 952 F. Supp. 2d 22, 31
(D.D.C. 2013) (“Comity would be served by allowing the D.C. Courts to address these
remaining issues, which concern matters of D.C. law and administration.”). Ryan’s
state-law claim sounds entirely in an area of law far more familiar to the District of
23
Columbia Superior Court than this one. See Yancey v. District of Columbia, 991 F.
Supp. 2d 171, 181 (D.D.C. 2013) (concluding that “[t]he factors enumerated in Section
1367(c) . . . weigh in favor of declining to exercise supplemental jurisdiction over the
remaining [common law] claims[,]” in part because “the District of Columbia Superior
Court would naturally have greater familiarity and interest in the issues that remain,
insofar as they require interpretation of the District’s own statutory and common law”
(internal quotation marks and citation omitted)). Furthermore, as other courts have
noted, no undue unfairness attaches to a federal court’s decision to decline to exercise
supplemental jurisdiction over a pendent state law claim, and the plaintiff ordinarily
will not be prejudiced by the delay, because section 1367(d) of Title 28 of the United
States Code “tolls the statute of limitations during the pendency of the federal case and
for at least 30 days thereafter.” Kyle, 177 F. Supp. 3d at 400 (internal quotation marks
and citation omitted).
These and other similar considerations lead this Court to conclude that Ryan’s
DCWPA claim should be dismissed without prejudice. Ryan may bring that claim, if he
so chooses and if it is not otherwise barred, in the appropriate local court. See, e.g.,
Powers-Bunce v. District of Columbia, 659 F. Supp. 2d 173, 182 (D.D.C. 2009)
(granting summary judgment in favor of defendant as to plaintiff’s sole federal cause of
action, declining to exercise supplemental jurisdiction over the remaining local-law
claims, and dismissing the local claims without prejudice).
IV. CONCLUSION
For the reasons explained above, this Court finds there is no evidence “that a
custom or policy of the [District]” caused the alleged violations of Ryan’s
24
constitutional rights, Blue, 811 F.3d at 18 (internal quotation marks and citation
omitted), and therefore, Defendants are entitled to summary judgment with respect to
Ryan’s First Amendment claim. This Court further finds that equitable considerations
weigh against the exercise of this Court’s authority to retain supplemental jurisdiction
over Ryan’s state-law claim. Accordingly, and as set forth in the accompanying Order,
Defendants’ motion for summary judgment will be GRANTED as to the First
Amendment claim (Count II), and the DCWPA claim (Count I) will be DISMISSED
WITHOUT PREJUDICE.
DATE: March 2, 2018 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
25
Ryan v. District of Columbia
Combined Opinion