UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) CLAUDIA A. BARBER, ) ) Plaintiff, ) ) v. ) No. 17-cv-620 (KBJ) ) DISTRICT OF COLUMBIA ) GOVERNMENT, et al., ) ) Defendants. ) )

MEMORANDUM OPINION Plaintiff Claudia Barber served as an Administrative Law Judge (“ALJ”) for the

District of Columbia Office of Administrative Hearings (“OAH”) for eleven years, from

August of 2005 until August of 2016, when she was terminated from that position.

(See, e.g., First Am. Compl. (“Barber I Compl.”), ECF No. 11, ¶ 8; Compl. (“Barber II

Compl.”), No. 17-cv-1680, ECF No. 1-3, ¶ 7.) 1 In two consolidated complaints, Barber

brings eleven claims against five defendants related to her tenure and eventual

termination. 2 Generally speaking, Barber alleges that despite meeting or exceeding

performance expectations throughout her service as an ALJ at OAH, she experienced

discrimination based on her race and color, including repeated denials of promotions.

(See Barber I Compl. ¶ 8; Barber II Compl. ¶¶ 7–18.) Barber also claims that her

1 Unless otherwise noted, filings cited in this opinion refer to documents filed in case number 17-cv- 620. 2 The defendants are: the District of Columbia (“the District”); OAH Chief ALJ Eugene Adams, OAH General Counsel Vanessa Natale, OAH Attorney-Advisor Shawn Nolen (collectively, “the District Defendants”); and Ronald Jarashow, a Maryland attorney and former judge on the Circuit Court of Anne Arundel County. supervisors retaliated against her between November of 2014 and January of 2016, after

she made both formal and informal complaints to management about racial

discrimination and other concerns. (See Barber I Compl. ¶¶ 60–62; Barber II Compl.

¶¶ 8–18, 38–39, 55–56.)

Before this Court at present are two motions that Defendants have filed, which,

collectively, seek to dismiss all of the counts in Barber’s two consolidated complaints

for various reasons. (See Dist. Defs.’ Mot. to Dismiss Pl.’s Compl. with Prejudice

(“Dist. Defs.’ Mot.”), ECF No 25; Def. Jarashow’s Mot. to Dismiss (“Jarashow’s

Mot.”), ECF No. 26.) As explained below, this Court concludes that the Defendants’

motions must be GRANTED IN PART AND DENIED IN PART. In short, the Court

will dismiss all of the counts that pertain to constitutional and tort claims, but will

permit the counts that relate to employment discrimination and retaliation to proceed.

I.

The facts recited in this opinion are gleaned from Barber’s consolidated

complaints and must be accepted as true, see Bell Atlantic Corp. v. Twombly,

, 555–56 (2007); notably, they need not be recounted in full for the purpose of the

instant ruling. It suffices to say here that Barber alleges that despite meeting or

exceeding performance expectations throughout her tenure as an ALJ at OAH, she

experienced discrimination based on her race and color—including repeated denials of

promotions—as well as retaliation when she made complaints about her supervisors’

allegedly discriminatory practices. (See Barber I Compl. ¶ 8; Barber II Compl. ¶¶ 7–

18.)

2 Three examples illustrate some of the many alleged instances of discrimination

and retaliation that are recounted in Barber’s consolidated complaints. Barber alleges

that in November of 2014, she complained to Wanda Tucker, the interim Chief ALJ,

that “African American ALJs routinely received less complex and less serious cases

than their Caucasian counterparts.” (Barber II Compl. ¶ 8.) Approximately three days

after complaining to Tucker, Barber allegedly was not assigned to a Principal ALJ

(“PALJ”) position to fill a vacancy, even though she had been routinely assigned to fill

such vacancies over the previous nine years. (Id.) Several months later, when another

PALJ position opened up, Tucker allegedly “instituted unreasonable selection criteria in

an effort to disqualify and retaliate against [Barber]” and to “discourage and eliminate

African American ALJs from applying for the open position[.]” (Id. ¶ 13.) Indeed,

Barber alleges that when she expressed her interest in the position, Tucker required her

to complete “the equivalent of a literacy test, which . . . Barber found humiliating.”

(Id.) And eventually Paul Handy, a Caucasian male, was selected for the PALJ

position. (Id.) Thereafter, in January of 2016, OAH Chief ALJ Eugene Adams

“announced a new plan for the fair selection of PALJs” whereby the OAH would

“promote those ALJs who volunteer to be PALJs alphabetically[,]” and under this new

system, Barber was allegedly the next ALJ slated to be promoted. (Id. ¶ 18.) However,

Barber alleges that Adams promoted a Caucasian woman over her instead, ignoring the

selection plan. (Id.) According to Barber’s pleadings, this “was the third time a less

qualified Caucasian ALJ was selected for a PALJ position over . . . Barber.” (Id.)

Due to Barber’s concerns with her workplace environment and the limited

opportunities for advancement as an ALJ, Barber began to consider running for a

3 position as a judge on the Circuit Court for Anne Arundel, Maryland. (See id. ¶ 16.)

She sought guidance from the District’s Commission on Selection and Tenure

(“COST”) and the Board of Ethics and Government Accountability with respect to her

ability to run for the Maryland judicial position without resigning from her position as

an ALJ in the District of Columbia. (See Barber I Compl. ¶¶ 9–10.) After allegedly

receiving mixed responses from some District employees and no responses from others,

Barber filed a Certificate for Candidacy in Maryland on January 20, 2016, listing her

party affiliation as “Judicial.” (See id. ¶¶ 9–13.)

In February of 2016, Defendant Jarashow, a Maryland attorney and former Anne

Arundel County Circuit Court judge “who was supporting other candidates for the

vacant circuit judge positions[,]” informed Chief ALJ Adams of Barber’s candidacy.

(See id. ¶ 15.) Jarashow allegedly maintained that two provisions of the District’s Code

of Ethics for ALJs required Barber to resign from her ALJ position in DC upon

becoming a judicial candidate elsewhere. (See id.) Defendant Chief ALJ Adams

subsequently placed Barber on administrative leave with pay, and after a COST hearing

in July of 2016, Barber’s employment as an ALJ was terminated for an ethics violation

on August 2, 2016. (See id. ¶¶ 21, 32–33.)

Barber filed a complaint against all Defendants in this Court on April 6, 2017,

which she amended on May 22, 2017 (“Barber I”). (See Compl., ECF No. 1; Barber I

Compl.) The operative complaint in Barber I contains seven counts: two constitutional

claims against the District alleging violations of procedural and substantive due

process; a constitutional claim against the District pursuant to section 1983 of Title 42

of the United States Code (“Section 1983”); a civil conspiracy claim brought under

4 section 1985 of Title 42 of the United States Code (“Section 1985”) against all

Defendants; a claim under the D.C. Whistleblower Protection Act (DCWPA),

.51–1-615.59, against the District Defendants; and two common law tort

claims against Jarashow. (See Barber I Compl. at 12–22.) 3 On July 19, 2017, Barber

filed a second and separate complaint against the District and Adams in the Superior

Court of the District of Columbia (“Barber II”); Defendants removed this complaint to

federal court on September 11, 2017. (See Not. of Removal, No. 17-cv-1860, ECF No.

1.) The complaint in Barber II includes four counts alleging workplace discrimination

brought pursuant to the D.C. Human Rights Act (DCHRA), D.C. Code §§ 2–1401.01–

2-1411.06, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17.

(See Barber II Compl. at 12–17.) This Court granted the District Defendants’ motion to

consolidate the two cases on October 17, 2017, and ordered all Defendants to file

omnibus responses to both complaints. (See Order Granting Mot. to Consolidate, ECF

No. 22, at 4–5.)

On November 11, 2017, Defendants filed two motions to dismiss Barber’s

consolidated complaints. The Court held a lengthy motion hearing on May 9, 2019,

after which it took the motions under advisement. (See May 9, 2019 Hr’g Tr. (“Hr’g

Tr.”).)

II.

As the Court explained to the parties during the motion hearing, a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency

of a complaint.” Browning v. Clinton,

(D.C. Cir. 2002). Therefore,

3 Page numbers herein refer to those that the Court’s electronic case-filing system automatically assigns.

5 “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(2009) (internal quotation marks and citation omitted). The

plaintiff is not required to provide “detailed factual allegations,” but rather must only

plead enough facts to “raise a right to relief above the speculative level” and to

“nudge[] their claims across the line from conceivable to plausible[.]” Twombly,

(internal quotation marks and citation omitted). At the motion-to-

dismiss phase, a court must “construe the complaint liberally, granting plaintiff the

benefit of all inferences that can be derived from the facts alleged,” Browning,

(alterations, internal quotation marks, and citation omitted), but it need not

“accept legal conclusions cast as factual allegations[,]” Hettinga v. United States,

(D.C. Cir. 2012).

The Court also explained that the eleven counts that Barber had brought between

the two complaints could be logically grouped into three categories: employment claims

(Barber I Compl., Count V; Barber II Compl., Counts I, II, III, and IV); constitutional

claims (Barber I Compl., Counts I, II, III, and IV); and tort claims (Barber I Compl.,

Counts VI and VII). (See Claims Handout, ECF No. 42.) The Court asked the parties

to address these claim categories, in turn, during the motion hearing.

III.

Barber’s complaints contain five counts alleging employment discrimination and

retaliation under the DCHRA, the DCWPA, and Title VII of the Civil Rights Act. (See

Barber I Compl., Count V; Barber II Compl., Counts I, II, III, and IV; see also Claims

6 Handout.) All of these claims survive Defendants’ motion to dismiss, in at least some

form, as explained below.

A.

With respect to Barber’s DCHRA and Title VII discrimination claims (Counts I

and III of Barber II), Barber’s complaint alleges that she was discriminated against

based on her race and color. (See Barber II Compl. ¶¶ 30, 47.) Notably, “[c]ourts in

this Circuit ‘have consistently recognized the ease with which a plaintiff claiming

employment discrimination can survive . . . a motion to dismiss[,]’” McNair v. District

of Columbia,

(D.D.C. 2016) (quoting Fennell v. AARP,

(D.D.C. 2011)). “In other words, the factual detail required to

survive a motion to dismiss can be quite limited.”

at 86–87 (internal quotation

marks and citation omitted). This is because a plaintiff need not prove a prima facie

case at the motion-to-dismiss stage: instead, with respect to both Title VII and the

DCHRA, “a plaintiff need only allege that she (1) suffered an adverse employment

action (2) because of her membership in a protected category.” Id. at 86. Moreover, an

“adverse employment action” is any event that “constitutes a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Burlington Indus., Inc. v. Ellerth,

(1998) (citations

omitted).

Barber has successfully pleaded her discrimination claims, on the basis of at

least the following alleged facts, which, viewed collectively, are sufficient to give rise

to a plausible claim of race discrimination: (1) the PALJ position was qualitatively

7 different from the ALJ position because of its supervisory duties (see id. ¶ 9); (2)

PALJs were paid more than ALJs (see id.); (3) less qualified Caucasian ALJs were

repeatedly selected for the better-compensated PALJ position over Barber and other

more senior African American ALJs (see id. ¶¶ 12, 18); and (4) on one occasion in

February 2016, Barber’s non-selection violated an established plan for ALJs to be

promoted to PALJs alphabetically (see id. ¶ 18). Taken together, these facts are

sufficient to support an inference that Barber suffered an adverse action when she was

not promoted to the qualitatively different and higher-paying PALJ position (see id.

¶¶ 9, 12, 18, 30, 47), and that this non-promotion was motivated by her race (see id.

¶¶ 8–13, 18, 30, 47). 4

The District Defendants argue that Barber’s non-promotion to the PALJ position

was not an “adverse action” because, among other things, Barber did not plead that

PALJs were paid more at the time of her alleged non-promotions. (See Dist. Defs.’

Mot. at 25.) But Barber’s complaint alleges that PALJs were paid more than other ALJs

for at least some period of time (see Barber II Compl. ¶ 9), and nothing in the

complaint suggests that the pay differential changed. “[C]onstru[ing] the complaint

liberally, [and] granting [Barber] the benefit of all inferences that can be derived from

the facts alleged,” Browning,

(internal quotation marks and citation

omitted)—as the Court must do at this stage of litigation—it is at least plausible that

PALJs were paid more than ALJs throughout Barber’s tenure.

4 Nothing about this opinion reduces or limits Barber’s employment discrimination claims to these facts alone. Given the extensive factual allegations in Barber’s consolidated complaints, this Court has opted to highlight only some of the relevant facts, and has rested its analysis on a minimum set of circumstances that, if true as pleaded, “raise a right to relief above the speculative level[.]” Twombly,

.

8 The District Defendants also dispute that the alleged facts demonstrate the

requisite causation; specifically, they insist that Barber was not selected as a PALJ

according to the alphabetical plan in February of 2016 because she was placed on

administrative leave with pay on February 12, 2016. (See Dist. Defs.’ Mot. at 26.)

However, once again, this contention improperly ignores the Court’s duty to accept the

allegations of the complaint as true and to construe the complaint liberally at the

motion-to-dismiss stage. See Browning,

. Barber’s complaint plainly

alleges that “[i]n January 2016, Defendant Adams announced a new plan for the fair

selection of PALJs” (i.e., the aforementioned plan “to promote those ALJs who

volunteer to be PALJs alphabetically”) and also states that the timing was such that

“Barber should be the next ALJ to be promoted to PALJ” under this new scheme.

(Barber II Compl. ¶ 18.) However, according to the complaint, “[i]n February 2016,

Defendant Adams instead promoted a Caucasian ALJ, Sharon Goodie, to PALJ and

ignored the selection plan[.]” (Id.) Given this timing, it is at least plausible that the

allegedly discriminatory non-selection of Barber in a manner that was inconsistent with

the established plan occurred prior to February 12, 2016. Therefore, the District

Defendants’ motion to dismiss Barber’s Title VII and DCHRA discrimination claims

will be denied.

B.

Turning to Barber’s retaliation claims, Barber II alleges in Counts II and IV that

the District Defendants retaliated against her in violation of the DCHRA and Title VII.

(See

¶¶ 38–39, 55–56.) To state a claim for retaliation under Title VII or the

DCHRA, a plaintiff “must establish three elements: [(1)] that she made a charge or

9 opposed a[n unlawful] practice . . ., [(2)] that the employer took a materially adverse

action against her, and [(3)] that the employer took the action because of her protected

conduct.” Allen v. Johnson,

(D.C. Cir. 2015) (citation omitted). The

relevant provisions of the DCHRA are generally interpreted consistent with Title VII,

see, e.g., Craig v. District of Columbia,

, 368–69 (D.D.C. 2014)

(citations omitted); Elhuseeini v. Compass Group USA, Inc.,

, 10 n.4

(D.D.C. 2008) (collecting cases), and it is well established that the scope of adverse

actions for Title VII retaliation claims is broader than it is for discrimination claims

because Title VII’s “antiretaliation provision . . . is not limited to discriminatory

actions that affect the terms and conditions of employment[,]” Burlington N. & Santa

Fe Ry. Co. v. White,

(2006) (citation omitted); see also Siddique v.

Macy’s,

, 107 n.10 (D.D.C. 2013) (explaining that federal courts in

this district apply Burlington Northern to DCHRA retaliation claims). Instead, “a

plaintiff must show that a reasonable employee would have found the challenged action

materially adverse, which in this context means it well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Burlington,

(internal quotation marks omitted) (citing Rochon v. Gonzales,

(D.C. Cir. 2006)).

Barber has successfully pleaded her retaliation claims, based on at least the

following alleged facts: (1) on November 17, 2014, Barber made an internal complaint

about racial discrimination in the assignment of complex cases (see id. ¶ 8); (2)

approximately three days later, Barber was not assigned to a vacant PALJ position, even

though she had routinely been assigned to similar positions in the past (see id.); and (3)

10 one month later, on December 2, 2014, Barber was again denied promotion to the PALJ

position (see id. ¶ 11). These events, which are temporally proximate to one another,

along with other, similar facts alleged in the complaint, are sufficient to support an

inference of unlawful retaliation. See Hamilton v. Geithner,

(D.C.

Cir. 2012) (explaining that causation can be reasonably inferred when two events are

“very close in time” (internal quotation marks and citation omitted)); Singletary v.

District of Columbia,

(D.C. Cir. 2003) (describing temporal

proximity as “quite close” when allegedly retaliatory act occurred a month after

protected activity). 5

Furthermore, the Court rejects the District Defendants’ argument that Barber’s

non-selection to the PALJ position was not a materially adverse action because PALJs

“were not paid more than ALJs at the relevant time[.]” (See Dist. Defs.’ Mot. at 30.)

As explained in Section III(A), supra, Barber has alleged that PALJs were paid more

than ALJs (see Barber II Compl. ¶ 9), and that she was denied the opportunity to serve

as a PALJ after she complained to Tucker about discrimination (see id. ¶¶ 8, 11). These

allegations are more than sufficient, given the capacious adverse-action framework that

is applicable to retaliation claims. See Burlington,

. Thus, this Court

will also deny the District Defendants’ motion to dismiss with respect to Barber’s Title

VII and DCHRA retaliation claims.

C.

Count V of Barber I alleges that the District, Adams, Natale, and Nolen

retaliated against Barber in violation of the District of Columbia Whistleblower

5 See n.4, supra.

11 Protection Act,

.51–1-615.59. The purpose of the DCWPA is to

“‘increase protection for District government employees who report waste, fraud, abuse

of authority, violations of law, or threat[s] to public health or safety[.]’” Sharma v.

District of Columbia,

(D.D.C. 2011) (quoting Whistleblower

Protection for Certain District Employees, 1998 D.C. Laws 12–160, Act 12–398). “In

order to establish a prima facie case under the [DCWPA], [a] plaintiff must allege facts

establishing that [(1)] she made a protected disclosure, [(2)] that her supervisor

retaliated or took or threatened to take a prohibited personnel action against her, and

[(3)] that her protected disclosure was a contributing factor to the retaliation or

prohibited personnel action.” Tabb v. District of Columbia,

(D.D.C. 2009).

Barber alleges that she made two disclosures that the DCWPA protects: a

complaint that she filed with the Office of the Inspector General in January of 2016,

and a negative response that she made to an auditing survey in April of 2016. (See

Barber I Compl. ¶ 60.) Barber’s complaint also maintains that retaliation based on

those disclosures “was a substantial or motivating factor” in the disciplinary

proceedings that began in February of 2016 and resulted in her termination in August of

2016. (See id. ¶ 62.) This Court finds that Barber has sufficiently pleaded a DCWPA

claim based on at least the following alleged facts: (1) she made a protected disclosure

to the Office of the Inspector General in January of 2016, by complaining that “Adams

ordered OAH ALJs to attend mandatory diversity training and later allowed a large

number of Caucasian ALJs to not attend the training that was already paid for by

taxpayers” (see id. ¶ 60); (2) Adams, her supervisor (see id. ¶ 5), knew about her

12 disclosure by April of 2016 (see id. ¶ 60); and (3) her disclosure motivated

Defendants—including Adams—with respect to various adverse employment actions

they instituted against her, which started in February of 2016 and culminated when she

was terminated in August of 2016 (see id. ¶ 62). Accepting these facts as true, the

Court concludes that it is plausible that Barber made a protected disclosure that

contributed to Adams’s February 2016 decision to place her on administrative leave

with pay in a manner that gives rise to an actionable DCWPA claim, even if Adams may

have also been motivated by Barber’s decision to run for judicial office.

In their briefing, the District Defendants dispute whether Adams knew about

Barber’s January 2016 disclosure before he placed Barber on leave in February of 2016.

(See Dist. Defs.’ Mot. at 22.) They insist that the complaint’s allegation that Adams

knew “by April of 2016” does not mean that he knew of the disclosure “in February

[of] 2016.” (Dist. Defs.’ Reply, ECF No. 31, at 16 (second emphasis in original).) In

addition, at the motion hearing, the District Defendants argued (for the first time) that

Barber’s January 2016 disclosure did not qualify as a protected activity, because Barber

merely revealed a policy or management disagreement rather than making a statement

that she “reasonably believe[d] evidence[d]” “[g]ross mismanagement”; “[g]ross misuse

or waste of public resources or funds”; “[a]buse of authority in connection with the

administration of a public program or the execution of a public contract”; [a] violation

of a federal, state, or local law, rule, or regulation, or of a term of a contract between

the District government and a District government contractor which is not of a merely

technical or minimal nature”; or “[a] substantial and specific danger to the public health

13 and safety[,]” as the DCWPA requires.

(a)(6)(A–E). (See Hr’g

Tr. at 41:10–43:17.)

As this Court has explained repeatedly (both during the hearing and herein),

arguments of this type raise factual disputes that are not appropriately considered at the

motion-to-dismiss stage of a case. (See, e.g.,

at 26:24–27:16, 57:25–58:19.). See

also, e.g., Brown v. District of Columbia, No. 15-cv-1380,

, at *6, 8–

9 (D.D.C. June 11, 2019). In the instant context, so long as it is at least plausible that

Barber’s January 2016 disclosure qualified as protected based on its alleged contents,

and that Adams knew about the disclosure prior to placing Barber on administrative

leave in February of 2016, Barber’s DCWPA claim may proceed. See, e.g., Democracy

Partners v. Project Veritas Action Fund,

(D.D.C. 2018)

(explaining that “[a]t [the motion-to-dismiss] stage of the proceedings, the factual

allegations in the complaint must be taken as true”).

This Court has a different view of Barber’s DCWPA claims against individual

defendants Natale and Nolen, as well as any DCWPA claim based on Barber’s April

2016 response to an auditing survey. (See Barber I Compl. ¶¶ 58–63.) First of all,

nothing in the complaint supports Barber’s argument that this Court can make “[a]

reasonable inference from the complaint . . . that Defendant Adams disclosed Plaintiff

Barber’s complaint to other OAH employees, including Defendants Nolen and Natale.”

(See Pl.’s Opp’n to Dist. Defs.’ Mot. (“Pl.’s Dist. Defs. Opp’n”), ECF No. 29, at 39.)

This is because the complaint alleges only that Adams knew about Barber’s January

2016 disclosure (see Barber I Compl. ¶ 60), and there are no plausible allegations

concerning Natale’s or Nolen’s knowledge of Barber’s protected disclosures to OAH in

14 January of 2016, nor does the complaint say anything about their knowledge of any

other potentially protected disclosures. (See generally Barber I Compl.; Barber II

Compl.) Thus, there are no facts from which to infer that these individual defendants

could have retaliated against Barber in violation of the DCWPA. (See Dist. Defs.’ Mot.

at 22.)

Second, Barber has failed to plead that anyone who took an allegedly retaliatory

action against her knew about her April 2016 negative response to the DC Auditor

survey. (See Barber I Compl. ¶ 61; see generally id.; Barber II Compl.) Therefore,

again, there is no factual basis upon which to draw any inference that any defendant

knew of Barber’s survey response and retaliated against her for that known, protected

conduct.

Consequently, Barber’s DCWPA claim may proceed only against the District and

Adams, and only to the extent that the claim relies on Barber’s January 2016 disclosure

to the Office of the Inspector General and on any retaliatory conduct by Adams. 6

III.

In addition to the employment discrimination and retaliation claims addressed in

Section II above, Barber’s complaint includes four counts against the District and

individual defendants Adams, Natale, Nolen, and Jarashow, alleging various

constitutional violations. (See Barber I Compl. at 12–18 (Counts I, II, III, and IV).)

Specifically, Barber claims that the District violated her constitutional rights to

6 Courts in this district have long held that the DCWPA does not provide a private right of action against individual supervisors, see, e.g., Williams v. Johnson,

(D.D.C. 2008), and it is well established that “this Circuit treats the lack of a right of action as an issue of failure to state a claim upon which relief can be granted,” see Boritz v. United States,

, 126 n.6 (D.D.C. 2010). But the District Defendants have not argued that Barber lacks a right of action against Adams under the DCWPA in the instant motion to dismiss, and this Court declines to address that issue sua sponte.

15 procedural due process and substantive due process (see

at 12–15 (Counts I, II));

that the District has a “custom or policy” concerning judicial elections that violates the

Fourteenth Amendment’s Equal Protection Clause and Fifth Amendment’s right to

contract (see

at 15–16 (Count III)); and that the District and the individual

defendants “deprived [Barber] of equal protection of the laws and/or privileges under

the laws by conspiring to violate her due process rights under the Fifth Amendment and

. . . the Equal Protection Clause of the Fourteenth Amendment” (id. ¶ 54; see also

at

16–18 (Count IV)). In their current form, none of these claims survive Defendants’

motions to dismiss.

A.

In Count I of Barber I, Barber alleges, as a freestanding constitutional claim, that

the District violated her procedural due process rights. (See id. ¶ 37.) 7 Some of the

factual allegations that are references in Barber’s complaint relate to alleged due

process violations in connection with Barber’s termination, while others relate to

alleged reputational harm that District employees caused after Barber was terminated.

(See id. ¶¶ 38–39.) Thus, at the outset, it is unclear whether Barber’s procedural due

process claim is based upon purported deficiencies in her termination process, and thus

turns upon the adequacy of the notice and any hearing she was afforded, see Propert v.

District of Columbia,

, 1332–33 (D.C. Cir. 1991), or whether her claim is

7 The Court characterizes this claim as “freestanding” because it appears that Barber intends to raise it directly under the Constitution, whereas procedural due process claims are typically pleaded pursuant to Section 1983 of Title 42 of the United States Code, which creates a cause of action through which a plaintiff may recover monetary damages following the deprivation of constitutional rights. (See Hr’g Tr. at 16:7–17:13; 53:10–55:5.) See also, e.g., Steinberg v. Dist. of Columbia,

, 75– 77 (D.D.C. 2012) (denying summary judgment with respect to a procedural due process claim against the District pleaded pursuant to Section 1983); Clay v. Dist. of Columbia,

, 44–45 (D.D.C. 2011) (dismissing a procedural due process claim against the District pleaded pursuant to Section 1983 because plaintiff failed to allege municipal liability adequately).

16 based upon an alleged reputational injury, which is assessed based on the combination

of an “adverse job action” and either “official defamation” or “a stigma or other

disability that foreclosed [her] freedom to take advantage of other employment

opportunities.” Hutchinson v. C.I.A.,

, 230–31 (D.C. Cir. 2005) (internal

quotation marks and citation omitted).

Notably, these are different legal theories of a procedural due process violation,

and these distinct theories rely on different factual allegations. Thus, it is clear to this

Court that Barber’s procedural due process claim does not provide adequate notice to

the District under Federal Rule of Civil Procedure 8. See Jiggetts v. District of

Columbia,

, 416–17 (D.D.C. 2017). Because of this, the Court will grant

the District’s motion to dismiss Count I of Barber I, but it will also grant the oral

motion to amend the complaint that Barber’s counsel made at the motion hearing as to

this claim, consistent with the Order accompanying this Opinion. (See Hr’g Tr. at

82:23–83:5; see also

at 52:19–54:4.)

B.

Barber further alleges, in Count II of Barber I, that the District violated her

“substantive due process rights by demanding that she resign from her position as an

ALJ . . . and thereafter removing her . . . based on an alleged violation of Section

V(U)[.]” (Barber I Compl. ¶ 43.) A claim that the government has violated a

plaintiff’s substantive due process rights requires conduct “so egregious, so outrageous,

that it may fairly be said to shock the contemporary conscience.” Estate of Phillips v.

District of Columbia,

(D.C. Cir. 2006) (quoting Cty. of Sacramento

v. Lewis,

, 847 n.8 (1998)). Given the kinds of actions that courts have

17 found sufficient to satisfy this standard, it is clear to the Court that the conduct Barber

points to here—i.e., the District’s alleged “demand” that she resign as an ALJ if she

intended to run for judicial office elsewhere, and her eventual removal from her ALJ

position—falls far short of the level of misconduct that is required to sustain a

substantive due process claim. See

(collecting cases illustrating “[c]onscience-

shocking conduct”); see also, e.g., Lewis,

(describing the forced

pumping of a suspect’s stomach as conduct that offends due process because it “shocks

the conscience”). Thus, Barber has failed to state a substantive due process claim on

these grounds.

To the extent that Barber’s substantive due process claim is based on her belief

that Section V(U) of the OAH Code of Ethics (“Section V(U)”) is an “unconstitutional,

arbitrary and capricious policy” (see id. ¶ 43; see also id. ¶ 44), any such allegation is a

conclusion of law that the court need not accept, see Hettinga,

.

Moreover, and in any event, Barber’s beliefs in this regard are not well founded.

Section V(U) provides that

[a]n Administrative Law Judge shall resign from judicial office when the Administrative Law Judge becomes a candidate either in a party primary or in a partisan general election except that the Administrative Law Judge may continue to hold office, while being a candidate for election to or serving as a delegate in a jurisdiction’s constitutional convention, if otherwise permitted by law to do so.

(Id. ¶ 16.) This requirement is rationally related to legitimate government interests of

“protecting the integrity of the judiciary” and “maintaining the public’s confidence in

an impartial judiciary.” Williams-Yulee v. Fla. Bar,

(2015)

(internal quotation marks and citation omitted); see also Morial v. Judiciary Comm’n of

State of La.,

, 302–03 (5th Cir. 1977) (upholding a similar rule requiring

18 state judges in Louisiana to resign before running in partisan elections); cf. U.S. Civil

Serv. Comm’n v. Nat’l Assoc. of Letter Carriers AFL-CIO,

, 580–81 (1973)

(rejecting constitutional challenge to Hatch Act’s restrictions on government

employees’ partisan political activities). And this Court has no doubt that this ethics

rule does not violate the substantive due process rights of the ALJs who are subject to

it. If Barber’s intent was, instead, to allege that District employees misapplied Section

V(U), or acted in violation of the procedural protections Barber was entitled to, this

Court is bound by D.C. Circuit precedent, which has flatly rejected similar substantive

due process claims even under circumstances in which the government has taken action

against a plaintiff based on mistaken beliefs and in violation of the law. See, e.g.,

Elkins v. District of Columbia,

, 561–62 (D.C. Cir. 2012); see also

Steinberg,

.

Accordingly, Barber’s complaint fails to state a substantive due process claim in

any respect, and as a result, the District’s motion to dismiss Barber’s claim must be

granted.

C.

Count III of Barber I claims a violation of Section 1983, insofar as the District

allegedly has a “custom or policy” concerning ALJs who seek to run for office that

violates the Equal Protection Clause and the Fifth Amendment. (See Barber I Compl.

¶¶ 47–51.) To succeed in a claim for relief under Section 1983, “a plaintiff must prove

both (1) a predicate constitutional violation and (2) that a custom or policy of the

municipality caused the violation.” Smith v. District of Columbia,

(D.D.C. 2018) (internal quotation marks and citation omitted). The “threshold

19 inquiry” in a Section 1983 suit “requires courts to identify the specific constitutional

right at issue.” Manuel v. City of Joliet, Ill.,

(2017) (internal

quotation marks and citation omitted).

Here, Barber’s complaint does not meet this threshold requirement. The relevant

count of the complaint cites two constitutional provisions—the Equal Protection Clause

of the Fourteenth Amendment and the right to contract that the Fifth Amendment

protects. (See id. ¶ 48.) The pleading then describes the alleged impact of Section

V(U), at least as Defendant Adams has interpreted it. (See id. ¶¶ 49–50 (“Defendant

Adams’[s] interpretation . . . bars ALJs who do not reside in the District of Columbia,

such as Plaintiff Barber, from participating in judicial elections to become judges in

states such as Maryland where trial judges are elected and requires ALJs who do run in

elections such as the Maryland election for Circuit Court judges to resign from

employment or be terminated.”).) Barber’s complaint asserts that Adams’s

interpretation renders Section V(U) “unconstitutional on its face, arbitrary and . . .

[in]sufficiently justified by government interests” (id. ¶ 49), and, in her opposition to

the District Defendants’ motion to dismiss, Barber baldly alleges that her Section 1983

claim also pertains to a violation of the Privileges and Immunities Clause (see Pl.’s

Dist. Defs. Opp’n at 27). But Barber has made no attempt to relate the allegations

concerning Section V(U)’s alleged impact on ALJs to the elements of an equal

protection or constitutional contract claim, and when questioned about this at the

hearing, Barber’s counsel simply stated that it was Barber’s intent to allege that Section

V(U) “was unconstitutional in the manner in which it was applied[.]” (Hr’g Tr. at

15:24–25.)

20 Given these myriad constitutional provisions and vague allegations, the Court

agrees with Defendants that Barber’s Section 1983 claim must be dismissed. “[Barber]

provides no explanation of the alleged conflict between [Section] V(U), or any

interpretation of it, and any constitutional provision” (Dist. Defs.’ Mot. at 18), and it is

well established that a complaint that contains legal claims that are divorced from the

factual allegations necessary to satisfy the applicable legal standards is subject to

dismissal, see Jiggetts, 319 F.R.D. at 416–17. Other courts in this district have

likewise concluded that generalized statements alleging violations of multiple

constitutional provisions without a description of how the facts alleged constitute the

claimed violations “fail to provide the ‘requisite specificity’ needed to survive a motion

to dismiss.” Voinche v. Obama,

(D.D.C. 2010) (citation

omitted).

So it is here. By alleging only that Section V(U) prevents Barber from

maintaining her position as an ALJ while running for judicial office elsewhere, without

any allegations of fact or citations to law that plausibly explain why such a

circumstance constitutes a violation of Barber’s constitutional rights, Barber’s Section

1983 count fails both Rule 8’s notice requirement and Rule 12(b)(6)’s mandate that a

complaint state a claim upon which relief can be granted. Consequently, Barber’s

Section 1983 claim (Count III of Barber I) will be dismissed.

D.

Finally, with respect to the category of constitutional claims, Count IV of Barber

I alleges that the District and individual defendants Adams, Natale, Nolen, and

Jarashow conspired to deprive Barber of “equal protection of the laws[.]” (See Barber I

21 Compl. ¶ 54.) The thrust of Barber’s allegation appears to be that Jarashow “falsely

claim[ed] that [Barber] was running as a Democrat candidate” in the Maryland judicial

election, and that the individual defendants conspired to produce a legal opinion that

mischaracterized the Maryland election as “partisan” in order to influence District

authorities concerning whether Barber’s ALJ position should be terminated. (Id.)

Thus, the factual basis for Barber’s claim that these defendants violated Section 1985 of

Title 42 of the United States Code, which prohibits conspiracies for the purpose of

depriving individuals of equal protection, appears to be the alleged fact that Jarashow

initiated the actions that led to Barber’s termination because he (falsely) intimated she

was running as a Democrat.

To state a claim under Section 1985,

a plaintiff must allege: (1) a conspiracy (2) motivated by ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus’ (3) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, and (4) an act in furtherance of the conspiracy (5) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.

Kelley v. District of Columbia,

(D.D.C. 2012) (quoting United

Bhd. of Carpenters, Local 610 v. Scott,

, 828–29 (1983)). Barber’s Section

1985 contention falters from the get-go—i.e., with respect to the first and second

elements of such a claim—and it fails even if one sets aside the complicated question of

whether or not one’s status (or perceived status) as a member of a political party

qualifies as a protected class for the purposes of a Section 1985 conspiracy. (See Pl.’s

Dist. Defs. Opp’n at 40–43.) See also Scott, 463 U.S. at 835–37 (withholding judgment

as to whether Section 1985 extends to animus based on political party, views, or

22 activities); Hobson v. Wilson,

(D.C. Cir. 1984) (collecting cases

addressing Section 1985’s applicability to political animus, but declining “to decide

whether purely political . . . activity without any racial overtones falls within [S]ection

1985(3)”).

Specifically, Barber’s Section 1985 claim is fatally flawed because her complaint

is completely devoid of any allegations regarding any defendant’s intent to oust her

from her job or deny her future opportunities on the basis of a protected trait or

characteristic, such that her pleading plausibly implicates the right to equal protection

or equal privileges under the law. There are no facts in Barber’s complaint that suggest

that anyone other than Jarashow knew of or even assumed Barber’s political party,

much less that any other alleged member of the conspiracy could have been motivated

by legally actionable animus against that classification. (See generally Barber I

Compl.) Nor has Barber alleged that the conspiracy was based on any other theory of

discrimination that might qualify as a denial of equal protection. (See generally id.; see

also Hr’g Tr. at 82:7-8 (“[W]e have not made the assertion in the complaint that there

was a racial component[.]”).)

Barber’s complaint is also entirely silent when it comes to any allegations of fact

regarding an actual agreement amongst the defendants, which is the essence of a

conspiracy; that is, nothing in the complaint even hints at “the existence of any events,

conversations, or documents indicating that there was ever an agreement or meeting of

the minds” amongst the defendants to violate her rights based on her membership in a

protected class. McManus v. District of Columbia,

(D.D.C.

2007) (internal quotation marks and citation omitted). Barber’s assertion of any

23 agreement at all (see Barber I Compl. ¶¶ 54–55) is “conclusory at best[,]” and it is clear

that “[c]onclusory allegations of an agreement will not suffice” to support a Section

1985 conspiracy claim at the motion-to-dismiss stage, Burnett v. Sharma,

(D.D.C. 2007) (collecting cases). Therefore, Barber’s Section 1985 claim

(Count IV of Barber I) will also be dismissed.

IV.

The last category of claims that Barber brings in the two consolidated complaints

consists of two state law tort claims against Jarashow. (See Barber I Compl. at 19–22

(Counts VI–VII).) Notably, Barber has brought only three claims against Jarashow

overall: the now-dismissed Section 1985 conspiracy claim (see Sec. III.D, supra); a

contract interference claim (see Barber I Compl. at 19–21 (Count VI)); and a

defamation claim (see id. at 21–22 (Count VII)). Thus, the only claims that remain

against Jarashow at this point in the Court’s analysis are the two tort claims, which

have been brought under state law and pertain to Jarashow’s alleged conduct with

respect to Barber’s quest for a judicial position in Maryland.

Barber concedes both that it is within this Court’s discretion to “decline to

exercise supplemental jurisdiction” over these state law tort claims (Pl.’s Opp’n to Def.

Jarashow’s Mot., ECF No. 28, at 30 (quoting

(c)(3)), and that, given

the circumstances presented here, she would suffer no prejudice if the Court did so (see

Hr’g Tr. at 24:6–25:13). Based on these concessions, and in light of the early stage of

this litigation, this Court will “decline to exercise supplemental jurisdiction” over the

tort claims against Jarashow, and as a result, it will grant Jarashow’s motion to dismiss

24 Counts VI and VII of Barber I.

(c); see also Jackson v. Bowser, No.

18-cv-1378,

, at *11 (D.D.C. May 3, 2019). 8

V.

In sum, and as reflected in the accompanying Order, this Court has addressed

Defendants’ motions to dismiss with respect to the eleven claims that Barber has made

across the consolidated complaints as follows: Barber’s employment claims (Barber I

Count V; Barber II Counts I, II, III, and IV) will be allowed to proceed, except that

Count V of Barber I will be dismissed as against Natale and Nolen; Barber’s

constitutional claims (Barber I Counts I, II, III, and IV) will be dismissed without

prejudice; Barber’s oral motion to amend the complaint will be granted as to her

procedural due process claim (Barber I Count I); and Barber’s tort claims against

Jarashow (Barber I Counts VI and VII) will also be dismissed without prejudice.

Accordingly, the District Defendants’ motion to dismiss Counts I, II, III, and IV

of Barber II is DENIED. 9 The District Defendants’ motion to dismiss Counts I, II, III,

and IV of Barber I is GRANTED, and Jarashow’s motion to dismiss Counts VI and VII

of Barber II is also GRANTED. With respect to the remaining claim, Count V of

Barber I, the District Defendants’ motion to dismiss is GRANTED IN PART AND

DENIED IN PART. The motion is granted to the extent that it seeks to dismiss Count

V of Barber I against individual defendants Natale and Nolen, and denied to the extent

8 To be clear, although Barber’s federal claims arising out of her alleged mistreatment by the District and Adams during the course of her employment as an ALJ remain (see Sec. III, supra), Jarashow’s alleged conduct has nothing to do with those claims and is not implicated in those counts. Consequently, the Court’s dismissal of the Section 1985 claim (see Sec. III.D, supra) eliminates the only federal-law basis for this Court’s exercise of subject matter jurisdiction over the claims against Jarashow. 9 District Defendants have not moved for dismissal of these claims against Adams in his individual capacity. (See Dist. Defs.’ Mot. at 21–23; see also id. at 7 n.3, 13 n.10.)

25 that it seeks to dismiss Count V of Barber I against the District and Adams based on

Barber’s January 2016 allegedly protected disclosure and Adams’s subsequent allegedly

retaliatory conduct.

Date: August 13, 2019 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

26