UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PATRICIA D. LEWIS,

Plaintiff, v. Civil Action No. 15-521 (JEB) GOVERNMENT OF THE DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Patricia Lewis, formerly employed as a human-resources adviser with the

District of Columbia’s Office of the Chief Medical Examiner (OCME), brought this suit against

the city and multiple officials, alleging myriad claims under the U.S. Constitution, federal

statutes, state statutes, and state common law. The gravamen of her Complaint is that the city

illegally required her to take a drug test as a condition of moving with her colleagues to the

District’s new Consolidated Forensic Sciences Laboratory. A subset of Defendants – the

District, former Mayor Vincent Gray, and OCME’s Chief of Staff, Beverly Fields – jointly

moved to dismiss the suit, which motion the Court recently granted in part and denied in part.

For undisclosed reasons, Defendants Paul Quander and Charles Tucker subsequently filed

separate Motions to Dismiss. In now considering those, the Court will dismiss the former

official, but not the latter.

I. Background

The Court’s lengthy Opinion, just issued on December 7, 2015, explains in detail the

background of this case and Plaintiff’s assorted causes of action. See Lewis v. Gov’t of Dist. of

1 Columbia,

(D.D.C. Dec. 7, 2015). The Court there dismissed Gray and

Fields, as well as a number of claims against the District; it also denied the city’s motion in

regard to several counts, which will proceed to discovery. In briefly setting forth the background

here, the Court will confine its discussion to the issues raised in the latest Motions.

The only causes of action that name Quander and Tucker are Counts II (Violation of

Fourth and Fourteenth Amendments), VI (Intentional Infliction of Emotional Distress), and X

(Defamation). As to Quander, the Complaint alleges no particular facts concerning improper

actions that he allegedly took, other than in relation to Lewis’s defamation claim. In that

context, she vaguely alleges that he offered “full support” to Fields, who directed the posting of a

picture of Plaintiff at the new lab with a label that she had failed the background check. See Am.

Compl., ¶ 60.

Tucker, however, is a different story. As described in the prior Opinion, Tucker, who

was an attorney for the city, informed OCME employees during a staff meeting on July 18, 2012,

that, as a condition of their relocating to the new laboratory, they would be required to consent to

a set of background checks detailed in a 2012 Mayor’s Order. See Am. Compl., ¶¶ 21, 22, 28

(citing Mayor’s Order 2012-84); District Mot. (ECF No. 17), Exh. A (Mayor’s Order 2012-84).

The Order indicated that the city’s Department of Human Resources possessed the authority to

require employees with “a duty station” at the new laboratory to submit to some combination of

“background checks, investigations, mandatory criminal background checks, and tests for

controlled substance use.” Mayor’s Order 2012-84 at 2. Tucker stated that employees had until

2 4:00 p.m. that day to sign a “Notification of [] Drug and Alcohol Testing Form,” which also

required disclosure of “any current medications,” or risk being fired. See Am. Compl., ¶¶ 21, 22.

Lewis “immediately protested” both the requirements themselves and the short timeframe

that employees were given to respond. See id., ¶ 23. She alleges that she made her objections

known “verbally” to an unspecified audience on July 18, 2012, and “in writing” in a letter to

Tucker two days later. See id., ¶¶ 23, 24. In the letter, Lewis stated that she was “hired into a

non-sensitive position that has not been reclassified, nor designated as high risk,” suggesting that

certain inquiries into her background, like the drug test, were unwarranted. See id., ¶ 23.

Plaintiff received a written response from Tucker on August 30, 2012, which stated definitively

that, “due to the relocations of your position to the new facility, you will be subject to mandatory

criminal background checks and testing for controlled substance use in accordance with [M.O.

2012-84].” Id., ¶ 27. According to Lewis, she refused to “submit[] to the background check,”

including a drug test. See id., ¶ 24. As a consequence of her refusal to comply with those

requirements, she claims that she suffered repeated mistreatment at the hands of the city and its

agents, all of which are detailed in the prior Opinion. See Lewis,

.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendants’

Motion to Dismiss, the Court must “treat the complaint's factual allegations as true . . . and must

grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow

v. United Air Lines, Inc.,

(D.C. Cir. 2000) (quoting Schuler v. United

States,

(D.C. Cir. 1979)) (citation omitted); see also Jerome Stevens Pharms.,

Inc. v. FDA,

(D.C. Cir. 2005). The notice-pleading rules are “not meant to

3 impose a great burden upon a plaintiff,” Dura Pharm., Inc. v. Broudo,

(2005),

and she must thus be given every favorable inference that may be drawn from the allegations of

fact. Bell Atlantic Corp. v. Twombly,

(2007).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion,

, “a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009)

(quoting Twombly,

). Plaintiff must put forth “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

The Court need not accept as true “a legal conclusion couched as a factual allegation,” nor an

inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm’n.,

(D.C. Cir. 2006) (quoting Papasan v. Allain,

(1986)

(internal quotation marks omitted)). For a plaintiff to survive a 12(b)(6) motion even if

“recovery is very remote and unlikely,” moreover, the facts alleged in the complaint “must be

enough to raise a right to relief above the speculative level.” Twombly,

-56

(citing Scheuer v. Rhodes,

(1974)).

In evaluating the sufficiency of Plaintiff’s Complaint under Rule 12(b)(6), the Court may

consider “the facts alleged in the complaint, any documents either attached to or incorporated in

the complaint and matters of which [the court] may take judicial notice.” Equal Emp’t

Opportunity Comm’n v. St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997).

The Court may thus consider those materials on a motion to dismiss without treating the motion

“as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d); Marshall v. Honeywell

Tech. Solutions, Inc.,

(D.D.C. 2008).

4 III. Analysis

Seeking dismissal here, Tucker and Quander have filed separate Motions to Dismiss the

three counts asserted against them – viz., Counts II (Violation of Fourth and Fourteenth

Amendments), VI (Intentional Infliction of Emotional Distress), and X (Defamation). The Court

addresses each Defendant in turn.

A. Tucker Motion

Tucker offers a befuddling two-page Motion that relies entirely on the Court’s lack of

subject-matter jurisdiction. More specifically, he asserts that no diversity of citizenship exists

here. See Tucker Mot. at 1-2. He has obviously misread the Amended Complaint, which

expressly relies on

(federal question), rather than, as he oddly claims, § 1332

(diversity), for federal subject-matter jurisdiction. Dismissal is thus unwarranted.

B. Quander Motion

Quander wisely takes a different approach. He “incorporates by reference the arguments

presented by the District Defendants in support of their motion to dismiss . . . .” Quander Mot. at

1. As those were winners earlier, so, too, do they prevail this time around.

The Court begins with Lewis’s Fourth Amendment claim (Count II). In dismissing this

count against Gray and Fields, the Court first noted that an official-capacity suit was redundant

where an action is also maintained against the city. See Lewis,

. It

further explained:

“To state a claim under § 1983 against an official in his individual capacity, a plaintiff must plead facts sufficient to allege (1) ‘the violation of a right secured by the Constitution and the laws of the United States,’ and (2) ‘that the alleged deprivation was committed by a person acting under color of state law.’” Ford v. Donovan,

(D.D.C. 2012) (quoting West v. Atkins,

(1988)) (emphasis added).

5

As with Fields and Gray, Plaintiff has alleged no facts that indicate that Quander himself had

any role in requiring Lewis to take a drug test or in causing her any harm thereafter as a result of

her refusal. This count thus cannot survive against him. To the extent Count II also contains

some type of due-process claim (labeled as Fourteenth Amendment), there is no allegation that

Quander took any steps to violate Lewis’s Fifth Amendment rights. See id. at *8-9 (dismissing

due-process claims against city, which, Court notes, actually derive from the Fifth Amendment,

not the Fourteenth as pled by Plaintiff).

Moving to the common-law claims (Counts VI and X), the Court previously dismissed

those against the city, Gray, and Fields without addressing their merits because “it is clear that

Plaintiff should have first sought administrative redress under the District’s Comprehensive

Merit Personnel Act (CMPA) before lodging such claims in court.” Id. at *12. Quander, who

incorporated the District’s arguments in his Motion, also benefits from this ruling, so Counts VI

and X will also be dismissed against him.

IV. Conclusion

For these reasons, the Court will grant Defendant Quander’s Motion and deny Defendant

Tucker’s. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: December 9, 2015

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