Ryan v. District of Columbia

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.

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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))).

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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

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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

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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)).

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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

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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

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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

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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

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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],

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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

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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

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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].

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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)).

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 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”

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(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.

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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.

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 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

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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

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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

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