UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TERRI LEA,

Plaintiff, v. Civil Action No. 22-1396 (JEB)

DISTRICT OF COLUMBIA, et al.,

Defendant.

MEMORANDUM OPINION

Plaintiff Terri Lea had an offer for a General Counsel position in the D.C. government.

That is, until her prospective employer learned that she had previously been suspended from the

D.C. Bar. As a result, two weeks after extending her an offer, the District understandably

reneged. Since then, Lea has applied for other legal jobs in the D.C. government but to no avail.

According to her, the District memorialized an adverse suitability determination in her personnel

file, marking her with a scarlet letter that has and will continue to bar her from finding

government employment. She thus brought this suit against the District and certain city

employees involved in her hiring process, alleging that they violated her constitutional right to

due process by tarnishing her reputation without a proper hearing, and that they are liable for

negligent misrepresentation in connection with her offer letter.

This Court having dismissed one of Lea’s federal counts at the motion-to-dismiss stage,

these Defendants now seek summary judgment. Although they offer myriad arguments in

support of their Motion, the Court need only consider one: that Lea has failed to present any

evidence that her unsuitability rating kept her from other D.C. government jobs, a necessary

1 requirement for alleging a violation of a constitutionally protected liberty interest via a stigma-

plus theory of reputational injury. With the record evidence against her, the Court will thus grant

Defendants’ Motion on Lea’s federal cause of action and decline to exercise supplemental

jurisdiction over her D.C.-based claim.

I. Background

Although the parties have filed Cross-Motions for Summary Judgment, because the Court

ultimately focuses on Defendant’s Motion, it will construe the facts in the light most favorable to

Plaintiff. See Talavera v. Shah,

(D.C. Cir. 2011).

A. Factual Background

In November 2017, Lea applied for the position of General Counsel for the District of

Columbia’s Department of For-Hire Vehicles (DFHV). See ECF No. 25-1 (Def. SUMF), ¶ 1;

ECF No. 26-1 (Pl. Counter SUMF) at 1. After completing a questionnaire, a personality test, and

several rounds of interviews, she was informed that she had been selected for the position. See

Def. SUMF, ¶ 2; ECF No. 27-2 (Pl. SUMF), ¶ 9; ECF No. 1-3 (Am. Compl.), ¶¶ 12, 17.

On March 15, 2018, Plaintiff received a formal offer in a letter signed by Ventris C.

Gibson, the Director of the District’s Department of Human Resources (DCHR). See ECF No.

30, Exh. 3 (Gibson Offer Letter); Def. SUMF, ¶ 3. The offer was contingent on Lea’s

completion of criminal-background and consumer-credit checks and on her compliance with a

D.C.-residency requirement. See Gibson Offer Letter at 1. She accepted her offer that same day.

See ECF No. 30, Exh. 4 (Lea Acceptance). Lea then claims that she resigned from her old job

and relinquished her lease in Maryland so she could move to D.C. — though Defendants

question both assertions, neither is material here, see Am. Compl., ¶¶ 24, 26; ECF No. 25 (Def.

MSJ) at 19–20; ECF No. 26 (Pl. Opp.) at 11 — and she prepared the necessary documentation to

2 complete the background and credit checks. See Am. Compl., ¶ 27.

Two weeks after extending the offer, however, the District revoked it. See ECF No. 25-

2, Exh. 2 (Initial Revocation Letter) at 1; Def. SUMF, ¶ 4; Pl. Counter SUMF, ¶ 4. According to

its letter of revocation, the District had determined that she was “not suitable for the position.”

See Initial Revocation Letter at 2. The city based that determination on Lea’s prior suspension

from the D.C. Bar. Id. at 1-2; Def. SUMF, ¶¶ 5–7; Pl. Counter SUMF, ¶¶ 5–7. Lea was then

given ten days to clarify any derogatory information revealed during her suitability screening.

See Initial Revocation Letter at 2. She thereafter filed a written appeal that included her Petition

for Reinstatement to the D.C. Bar. See Def. SUMF, ¶ 9; Pl. Counter SUMF, ¶ 9. On June 8,

2018, she received a final notice of revocation, which reiterated that she was “unsuitable for

employment as a General Counsel.” See ECF No. 25-2, Exh. L (Final Revocation Letter) at 1.

The parties dispute the consequences of this missed opportunity. Lea alleged in her

Amended Complaint that her unsuitability assessment was eventually “memorialized and put in

[her] personnel file,” which DCHR maintained. See Am. Compl., ¶ 61. She alleged that this file

then became available to “all future D.C. government agency personnel officials and prospective

hiring decision makers throughout the [D.C.] government.” Id., ¶ 62. Following the District’s

revocation of her initial employment offer, she alleges that she has applied to numerous legal

positions in the D.C. government but has received no interview invitations, much less a job offer.

Id., ¶¶ 38, 40. All this occurred, she contends, because that initial unsuitability assessment

marked her with a scarlet letter, “foreclos[ing]” her from a legal career in D.C. government

because in every future application she submits she would be “automatically determined to be

‘unsuitable’ and disqualified for any such positions.” Id., ¶ 41; see also Pl. Opp., ¶ 18. While

these are serious allegations, a central question on this Motion is whether record evidence

3 supports them. Indeed, Defendants disclaim the existence of any sort of applicant blacklist and

dispute that DCHR retained or shared Lea’s unsuitability rating with any other District office.

See Def. SUMF, ¶¶ 16–19; Pl. Opp., ¶¶ 17–18.

B. Procedural Background

Plaintiff filed this lawsuit in D.C. Superior Court in September 2020, see ECF No. 1-2

(Original Compl.), naming the District of Columbia, Ventris Gibson, Ernest Chrappah, and

Ronald Ross (then-Director of the Mayor’s Office of Legal Counsel) as Defendants. Id. They

then removed it to federal court. See ECF No. 1 (Notice of Removal). The Amended Complaint

asserted three counts: the first two were § 1983 claims that alleged violations of her

constitutional right to due process under reputation-plus and stigma-plus theories, and the last

was a D.C.-law claim alleging negligent misrepresentation in relation to her offer of

employment. Id., ¶¶ 42–87. Defendants moved to dismiss the Complaint or, in the alternative,

for summary judgment. See ECF No. 8 (Def. MTD). This Court granted that Motion in part,

dismissing the reputation-plus component of her § 1983 count because she had not alleged a

discharge or demotion in rank and pay as required for such a claim. See Lea v. District of

Columbia, No. 22-1396,

, at *4 (D.D.C. Aug. 8, 2022). Now, with discovery

complete, the parties cross-move for summary judgment on what remains.

II. Legal Standard

Summary judgment must be granted 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); see also Anderson v. Liberty Lobby,

, 247–48 (1986); Holcomb v.

Powell,

(D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. See Liberty Lobby,

; Holcomb,

4 895. A dispute is “‘genuine’ . . . if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Liberty Lobby,

; see also Scott v. Harris,

(2007); Holcomb,

. “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion” by “citing to particular parts of materials in the

record” or “showing that the materials cited do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.

R. Civ. P. 56(c)(1).

In considering a motion for summary judgment, “[t]he evidence of the non-movant is to

be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby,

; see also Mastro v. PEPCO,

(D.C. Cir. 2006); Aka v. Washington

Hosp. Ctr.,

(D.C. Cir. 1998) (en banc). The Court must “eschew making

credibility determinations or weighing the evidence.” Czekalski v. Peters,

(D.C. Cir. 2007). The non-moving party’s opposition, however, must consist of more than mere

unsupported allegations or denials and must be supported by affidavits, declarations, or other

competent evidence, setting forth specific facts showing that there is a genuine issue for trial.

See Fed. R. Civ. P. 56(c), (e); Celotex Corp. v. Catrett,

(1986). The non-

movant, in other words, is required to provide evidence that would permit a reasonable jury to

find in his favor. See Laningham v. U.S. Navy,

(D.C. Cir. 1987).

III. Analysis

The Court begins with Lea’s § 1983 stigma-plus claim and then explains why it will not

exercise supplemental jurisdiction over the remaining D.C.-law negligent-misrepresentation

count.

5 A. Section 1983 Claim

Lea’s sole extant federal cause of action invokes § 1983. She submits that the District’s

refusal to hire her, coupled with its assessment that she was “unsuitable” for the General Counsel

role, besmirched her name and thus prevented her from securing any employment in the D.C.

government. See Am. Compl., ¶¶ 51–67. As this Court explained in its previous Opinion, the

only legally plausible way that she can support a claim that the District, in making its

assessment, violated a constitutionally protected liberty interest is via a stigma-plus theory of

reputational injury. See Lea,

, at *4-5.

The Court recounts the requirements of such a claim and then considers the record

evidence to determine whether a triable issue of fact exists on this count.

1. Stigma Plus

To state a claim for the denial of procedural due process, which is what Lea maintains

here, “a plaintiff must allege that [(1)] the government deprived her of a liberty or property

interest to which she had a legitimate claim of entitlement, and [(2)] that the procedures attendant

upon that deprivation were constitutionally [in]sufficient.” New Vision Photography Program,

Inc. v. District of Columbia,

(D.D.C. 2014) (citation and internal

quotations omitted).

The Supreme Court has recognized a constitutional liberty interest in one’s reputation.

See Bd. of Regents of State Colleges v. Roth,

(1972) (“[W]here a person’s

good name, reputation, honor, or integrity is at stake because of what the government is doing to

him,” that person’s liberty interest is on the line, meaning that “notice and an opportunity to be

heard are essential.”) (internal quotations and citation omitted). But not every stigma-based or

reputational harm will sustain a due-process claim — there must also be a “plus” factor that

6 boosts the injury from merely reputational to constitutional. In this Circuit, at least, a plaintiff

may take one of two paths to establish a reputation-based due-process violation. See Hutchinson

v. CIA,

(D.C. Cir. 2005).

The one outstanding here is the so-called “stigma-plus” claim. While this theory requires

alleging an adverse official action, it differs from the alternative reputation-plus theory of harm

— whose applicability to Lea this Court rejected in its previous Opinion, see Lea,

, at *4–5 — “in that it does not depend on official speech, but on a continuing stigma or

disability arising from” that action. O’Donnell v. Barry,

(D.C. Cir. 1998).

To bring a claim under the stigma-plus theory, a “plaintiff must show not only that the

government has imposed some stigma upon [her], but also that it has worked some change in

[her] status under law.” Taylor v. Resol. Tr. Corp.,

(D.C. Cir. 1995). In this

Circuit, there are two ways to demonstrate that required change in status.

First, a plaintiff

may show that the government’s action “formally or automatically excludes” her from

government employment opportunities. Kartseva v. Dep’t of State,

(D.C.

Cir. 1994). Alternatively, even if the government action does not have a “binding effect,” a

plaintiff may demonstrate that the action precludes her from such a broad range of opportunities

that it “interferes with [her] constitutionally protected right to follow a chosen trade or

profession.”

at 1528–29 (citations and internal quotations omitted).

2. Record Evidence

As to the first test, Plaintiff here has failed to marshal any evidence that the District’s

unsuitability determination has “formally or automatically exclude[d]” her from future jobs with

the city. See Kartseva,

. Lea contends in her Cross-Motion for Summary

Judgment that “[o]ver the last couple of years [she] has applied for a number of positions in the

7 D.C. government but has gotten [nowhere], a clear sign that she is foreclosed from employment

with the District of Columbia government.” ECF No. 27 (Pl. MSJ), ¶ 8; Pl. Counter SUMF,

¶ 18. This statement, however, is mere argument and is unsupported by the record.

For example, as the District explains in its Motion, DCHR has no personnel file for Lea.

See Def. MSJ, Exh. M (Declaration of Amir Farhangi), ¶ 3;

Exh. 1 (OPF Search Screenshot).

Indeed, DCHR creates Official Personnel Folders (OPFs) only for its employees who have begun

working for the District, not for unsuccessful applicants. See Def. MSJ at 12 (citing 6-B DCMR

§ 3107.1). A search for Lea’s name in that database returns no results. See Farhangi Decl., ¶ 3

(noting that a “[a] search for ‘Terri Lea’ in the DCHR database in which Employee [ID

Numbers] are stored yields no results, indicating Ms. Lea was never assigned an Employee ID

Number, and has no OPF” file); OPF Search Screenshot at 1 (displaying no matching results for

a search of Lea’s name); Def. SUMF, ¶ 17. Even when viewed in the light most favorable to her,

Lea’s allegations that the District maintains and disseminates information about her unsuitability

determination for the general counsel position to which she applied, see Pl. Opp. at 21

(suggesting that, even if there are no such records, “[t]hat does not . . . mean that individuals

were never asked to provide prior suitability determinations, it only means that they do not have

any records of said requests”), are contradicted by the record evidence. In fact, the District has

clearly shown that no such records — nor any hypothetical “foreclosure” list of unsuitable

employees — exists. See Def. SUMF, ¶ 17; Pl. Opp. at 21 (admitting that such a list may not

exist as such).

Lea responds that while the District may not maintain an OPF file associated with her,

DCHR nevertheless retains a separate file pertaining to applicants for District employment in a

system called PeopleSoft. See Pl. Counter SUMF, ¶ 18; Pl. MSJ at 17. How else, she asks,

8 could the DCHR Associate Director know that she had applied to other job postings with the

District? See ECF No. 38 (Pl. Reply) at 8. Just because the District maintains application files,

however, does not mean that it maintained and shared Lea’s unsuitability rating. In fact,

Defendants provide a screenshot of Lea’s PeopleSoft entries, which list her applications but do

not always list the outcome of her candidacy nor the reason why she was not chosen for a

position. See Def. MSJ, Exh. 3 (PeopleSoft Screenshot).

Even if the evidence cannot support Lea’s contention that she is “formally or

automatically exclude[d]” from future jobs with the District, Kartseva,

, she may

still prevail if she can demonstrate that the District’s action precludes her from such a broad

range of opportunities that it “interferes with [her] constitutionally protected right to follow a

chosen trade or profession.”

at 1528– (citations and internal quotations omitted). Lea herself

suggests that, while the District may not maintain a formal bar against her future employment, “it

is not a stretch to believe that de facto processes do exist which effectively foreclose

employment opportunities to individuals who are faced with past infractions.” Pl. Counter

SUMF, ¶ 17.

Once again, however, this is speculation; the record evidence provides no support for her

allegations, which rest entirely upon the assertion that Defendants have failed to show that “such

a system does not, in fact, exist.”

As the Court reviewed above, none of the records that the

District has produced — including Lea’s PeopleSoft entries and her non-existent OPF file —

provides any evidence that the initial unsuitability determination has been held by DCHR, much

less disseminated to the District’s other agencies. In fact, they show that no such unsuitability

determination record exists. Although this Court previously treated Plaintiff’s allegations as true

at the motion-to-dismiss stage, the test is sterner now, and she has not advanced her claims

9 beyond the “rather conclusory” allegations stated in her initial Complaint. Lea,

, at *6.

Additionally, the District has shown that of the six additional positions Plaintiff applied

to, two were simply withdrawn. See Def. MSJ at 12 (citing Def. SUMF, ¶ 17; PeopleSoft

Screenshots). For the other positions she sought, a much more reasonable explanation exists for

why Plaintiff was unsuccessful — viz., her original unsuitability finding (her D.C. Bar status)

was based on publicly available facts (the D.C. Court of Appeals decisions to suspend her

license). Because a stigma-plus claim requires that the “government . . . be the source of the

defamatory allegations,” Doe v. U.S. Dep’t of Just.,

(D.C. Cir. 1985), any

future employer’s reliance on the public information concerning Plaintiff’s disciplinary history

or prior employment — both factors in the District’s decision here to revoke her initial offer of

employment — cannot support her stigma-plus claim.

The Court thus finds that Lea has not created a dispute of material fact on her stigma-plus

claim, and it enters judgment for Defendants on this count.

B. Remaining Counts

With Plaintiff’s sole federal claim now gone, this Court lacks subject-matter jurisdiction

over her remaining count for negligent misrepresentation, and it will decline to exercise

supplemental jurisdiction.

Federal district courts are given supplemental (or “pendent”) jurisdiction over state

claims that “form part of the same case or controversy” as federal claims over which they have

original jurisdiction. See

(a). By the same token, they “may decline to exercise

supplemental jurisdiction over [such] claim[s] . . . if . . . the district court has dismissed all claims

over which it has original jurisdiction[.]”

§ 1367(c)(3). The decision of whether to exercise

10 supplemental jurisdiction where a court has dismissed all federal claims is left to the court’s

discretion as “pendent jurisdiction is a doctrine of discretion, not of plaintiff's right.” United

Mine Workers of Am. v. Gibbs,

(1966); see also Shekoyan v. Sibley Int’l,

(D.C. Cir. 2005). When deciding whether to exercise supplemental jurisdiction

over state claims, federal courts should consider “judicial economy, convenience, fairness, and

comity.” Shekoyan,

(quoting Carnegie-Mellon Univ. v. Cohill,

,

350 n.7 (1988)). When all federal claims are eliminated before trial, however, those factors “will

point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-

Mellon,

n.7; see also Edmondson & Gallagher v. Alban Towers Tenants Ass’n,

, 1267 (D.C. Cir. 1995) (finding the discretion set out in Carnegie-Mellon

“unaffected by the subsequent enactment of

(d), in the Judicial Improvements

Act of 1990”).

These factors weigh against retention here. The Court is dismissing the sole federal claim

against Defendants. This case has not progressed in federal court past this Motion for Summary

Judgment, and the Court has developed no familiarity with the additional issues presented. Cf.

Schuler v. PricewaterhouseCoopers, LLP,

(D.C. Cir. 2010) (holding that

district court appropriately retained pendent jurisdiction over state claims where it had “invested

time and resources” in the case). Although dismissal of the remainder of the case without

prejudice — so that Plaintiff could file in the “appropriate state court” — is the typical result in

these circumstances, this case is somewhat different. Given that it was Defendants who removed

the matter here, the fairer course is to remand the case to Superior Court, where Plaintiff may

prosecute her local cause of action.

11 IV. Conclusion

For the foregoing reasons, Defendants’ Motion for Summary Judgment will be granted in

part, and the remainder of the case will be remanded to Superior Court. A separate Order so

stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: July 27, 2023

12