UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ROBERT COHEN, ) ) Plaintiff, ) v. ) ) THE BOARD OF TRUSTEES OF THE ) Civil Action No. 14-754 (EGS) UNIVERSITY OF THE DISTRICT ) OF COLUMBIA, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

I. Introduction

Plaintiff Robert Cohen (“Dr. Cohen” or “Plaintiff”)

initiated this suit against the Board of Trustees of the

University of the District of Columbia (“UDC” or “the

University”) and several UDC officials—including then-Provost

Graeme Baxter (“Provost Baxter”) and then-President Allen

Sessoms (“President Sessoms”)—(collectively, “Defendants”) as a

result of Dr. Cohen’s termination as a professor at UDC. See

Second Am. Compl., ECF No. 22 ¶¶ 1-7, 36. 1 The sole remaining

claim in Dr. Cohen’s suit is a

(“Section 1983”)

claim for a violation of his due process rights. See Mot. to

Dismiss Mem. Op. (“MTD Op.”), ECF No. 31 at 2. Pending before

1 When citing electronic filings throughout this Opinion, the Court refers to the ECF header page numbers, not the page numbers of the filed documents. 1 the Court is Defendants’ Motion for Summary Judgment on this

claim. See Defs.’ Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 54.

Upon careful consideration of the motion, the response, the

reply thereto, the entire record herein, and the applicable law,

the Defendants’ Motion for Summary Judgment is hereby GRANTED.

II. Background

A. Factual Background

Dr. Cohen worked as a professor at the University. 2 Defs.’

Reply to Pl.’s Counter-Statement Material Facts Which There Is

Genuine Issue (“Defs.’ Reply SOMF”), ECF No. 60 at 28. In 2010,

Provost Baxter recommended Dr. Cohen for termination based on

the latter’s failure to submit a complete, cumulative evaluation

2 The facts in this section are undisputed unless otherwise indicated. As Defendants note in their reply brief, see Defs.’ Reply Br. Supp. Their Mot. Summ. J. (“Defs.’ Reply”), ECF No. 60 at 6-7; in order to properly dispute a fact under the local rules, this Court’s rules, and the Federal Rules of Civil Procedure, a party must support their claim with citations to the record. See Fed. R. Civ. P. 56(c)(1)(A). In his Response to Defendants’ Statement of Undisputed Material Facts, Plaintiff often “[d]isagree[s]” with Defendants’ stated fact but either: (1) fails to cite to evidence in the record showing a dispute or (2) provides information that does not directly address the fact in question. See, e.g., Pl.’s Rule 56 Resp. Defs.’ Statement Undisputed Material Facts, ECF No. 57-3 ¶¶ 5, 7, 11, 14, 15, 28, 37, 39, 44; see also Defs.’ Reply, ECF No. 60 at 7-13 (providing examples of Plaintiff’s failure to properly address and dispute Defendants’ facts). Where Plaintiff has failed to properly dispute a fact and where this Court has not independently found evidence in the record challenging Defendants’ statement of a fact, that fact is deemed undisputed. See Fed. R. Civ. P. 56(e)(2). 2 portfolio as required by the University.

. Dr. Cohen

was sent a statement of cause, explaining the reason for his

recommended termination, and he was terminated on August 5,

2010.

.

The University and its union—the University of the District

of Columbia Faculty Association/NEA (“the Union”)—had a

collective bargaining agreement at the time of Dr. Cohen’s

termination titled the Sixth Master Agreement (“Sixth Master

Agreement” or “the Agreement”).

. The Sixth Master

Agreement allowed a tenured faculty member to appeal their

termination to the University President.

. Dr. Cohen,

as a member of the Union, appealed his termination to President

Sessoms in early September.

. President Sessoms

denied Dr. Cohen’s appeal.

.

Dr. Cohen contacted the Union President to explore next

steps for contesting his termination.

. The Union

President informed Dr. Cohen that: (1) he could file a

grievance, as outlined in the Sixth Master Agreement; (2) he had

the right to seek representation from outside counsel and that

the Union would work with him and his attorney; and (3) he could

not assume that the Union would arbitrate his case as it does

not take every appeal or grievance to arbitration.

Dr. Cohen

did not file a grievance pursuant to the terms of the Sixth

3 Master Agreement, and he also did not ask the Union to arbitrate

his case.

.

B. Procedural Background

Dr. Cohen filed a suit against Defendants for breach of

contract in the Superior Court for the District of Columbia in

September 2013. See Defs.’ Notice Removal, ECF No. 1 ¶ 1. In

March 2014, the Superior Court for the District of Columbia

dismissed Dr. Cohen’s breach of contract claim but allowed him

to file an amended complaint.

. Dr. Cohen’s amended

complaint alleged new causes of action under

and various common law tort claims.

. Defendants removed

the action to federal court based on Dr. Cohen’s constitutional

claims.

.

In April 2018, this Court granted in part Defendants’

motion to dismiss, leaving only Dr. Cohen’s section 1983 claim

for a violation of due process against UDC, President Sessoms,

and Provost Baxter. 3 See MTD Op., ECF No. 31 at 43. In that

opinion, this Court explained that Dr. Cohen’s sole, relevant

allegation was that the Sixth Master Agreement deprived him of a

“meaningful opportunity to be heard” post-deprivation and thus

3 Dr. Cohen also claimed Professor Vernice Steadman violated his due process rights, but this Court concluded that Dr. Cohen failed to state a claim against Professor Steadman. See MTD Op., ECF No. 31 at 35-36. 4 the Agreement itself violated his due process rights.

.

This Court also understood Dr. Cohen’s claims against Provost

Baxter and President Sessoms to stem from their enforcement of

the allegedly unconstitutional agreement.

. Thus, this

Court dismissed the other claims regarding Dr. Cohen’s

termination and clarified that “Dr. Cohen’s remaining claim is

his due process claim pursuant to Section 1983 against municipal

defendant the UDC Board of Trustees and individual defendants

President Sessoms and Provost Baxter.”

; see also

Minute Order (Dec. 3, 2018) (“The remaining issues in this case

are quite limited: (1) whether the Sixth Master Agreement

provided sufficient post-termination due process and, if so (2)

whether the two remaining individual defendants enforced the

purportedly unconstitutional policy.”).

Thereafter, Defendants filed a Motion for Summary Judgment

on Dr. Cohen’s sole remaining claim. See Defs.’ Mot., ECF No.

54. Plaintiff filed his opposition, see Pl.’s Opp’n Defs.’ Mot.

Summ. J. (“Pl.’s Opp’n”), ECF No. 57; and Defendants filed their

reply, see Defs.’ Reply, ECF No. 60. The motion is ripe and

ready for review.

III. Standard of Review

Federal Rule of Civil Procedure 56 requires the Court to

grant a motion for summary judgment when “there is no genuine

dispute as to any material fact and the movant is entitled to

5 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

“material” fact is one that could “affect the outcome of the

suit under the governing law.” Anderson v. Liberty Lobby, Inc.,

(1986). And a dispute is “genuine” if “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.”

The moving party bears the burden

of “informing the district court of the basis for its motion” as

well as “identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett,

(1986) (internal

quotation marks omitted); see also Fed. R. Civ. P. 56(c)(1)(A).

To defeat summary judgment, the nonmoving party must “go

beyond the pleadings” and “designate specific facts showing that

there is a genuine issue [of material fact] for trial.” Celotex

Corp.,

(internal quotation marks omitted). In

evaluating a summary judgment motion, “[t]he evidence of the

nonmovant is to be believed, and all justifiable inferences are

to be drawn in his favor.” Anderson,

. However,

the nonmoving party’s opposition “must consist of more than mere

unsupported allegations or denials and must be supported by

affidavits or other competent evidence” in the record. Musgrove

v. District of Columbia,

(D.D.C. 2011);

6 see also Celotex Corp.,

. If the evidence

favoring the nonmoving party is “merely colorable, or is not

significantly probative, summary judgment may be granted.”

Anderson,

(internal citations omitted).

IV. Analysis

Dr. Cohen’s section 1983 due process claim alleges a

violation of his rights because the Sixth Master Agreement fails

to provide adequate post-deprivation due process. See MTD Op.,

ECF No. 31 at 28. Under the theory of municipal liability, he

argues that the University is liable because the Agreement is a

municipal policy. Id. at 34. Dr. Cohen further argues that the

individual defendants, Provost Baxter and President Sessoms, are

liable for enforcing the allegedly unconstitutional agreement by

terminating Dr. Cohen pursuant to its terms. Id. at 40.

In their Motion for Summary Judgment, Defendants argue that

the Sixth Master Agreement provides adequate post-deprivation

due process, which Dr. Cohen failed to utilize. Defs.’ Mot., ECF

No. 54 at 22. They further argue that even if the Sixth Master

Agreement was constitutionally inadequate, the individual

defendants are entitled to summary judgment as a matter of law

because they did not violate Dr. Cohen’s rights through their

own, individual actions. Id. at 34-35. Since Defendants’

liability is contingent upon whether the Court concludes that

there was a violation of due process, the Court will begin with

7 an analysis of the Sixth Master Agreement to determine whether

its post-deprivation procedures comport with due process.

A. Procedural Due Process Requirements

“A procedural due process claim consists of two elements:

(i) deprivation by state action of a protected interest in life,

liberty, or property, and (ii) inadequate state process.” Reed

v. Goertz,

, 961 (2023) (citing Zinermon v. Burch,

(1990)). As a “general rule,” due process

requires that individuals “receive notice and an opportunity to

be heard before the [deprivation].” UDC Chairs Chapter v. Bd. of

Trs. of the Univ. of D.C.,

(D.C. Cir. 1995)

(internal quotation marks omitted). However, “a post-deprivation

opportunity to be heard is sufficient in extraordinary

situations where some valid governmental interest is at stake

that justifies postponing the hearing until after the event.”

(internal quotation marks omitted).

In determining whether due process was violated, the Court

must “ask what process [was] provided, and whether it was

constitutionally adequate.” Zinermon,

. In the

post-deprivation context, “[d]etermining whether a post-

deprivation hearing would satisfy the minimal requirements of

due process involves an examination of the competing interests

at stake, along with the promptness and adequacy of later

proceedings.” UDC Chairs Chapter,

(internal

8 quotation marks omitted). The analysis requires balancing “the

three factors set forth in Mathews v. Eldridge: the private

interest affected; the risk of erroneous deprivation of that

interest and the likely value of additional safeguards; and the

Government’s interest.”

(citing Mathews v. Eldridge,

(1976)). The inquiry is a “flexible” assessment

that “varies with the particular situation.” Zinermon,

. Additionally, “a procedural due process claim requires

the plaintiff to identify the process that is due.” Doe ex rel.

Fein v. District of Columbia,

(D.C. Cir. 1996).

B. Termination and Post-Deprivation Procedures Under the Sixth Master Agreement

Under the Sixth Master Agreement, tenured faculty members

can only be terminated for cause. Defs.’ Ex. A (“Sixth Master

Agreement”), ECF No. 54-2 at 20. This requirement tasks the

University with proving, through “clear and convincing

evidence,” “gross professional misconduct, conviction of a

felony or crime of moral turpitude, or fraud in the securing of

employment or promotion, or . . . professional misconduct, or a

pattern of dereliction of duties or responsibilities, for which

the faculty member was previously suspended.” Id. at 21.

The procedure begins with a “discussion between the faculty

member and a University administrator” regarding the conduct at

issue. Id. If the University administrator determines that

9 further action is necessary, they then may “recommend[] to the

Provost and Vice President for Academic Affairs the

. . . termination of the faculty member.” Id. After receiving

the recommendation, “the Provost and Vice President for Academic

Affairs or his or her designee shall conduct an informal

inquiry, the purpose of which shall be to determine whether, in

his or her opinion, the facts merit the imposition of such

sanctions.” Id. at 22. As part of this inquiry, the Provost and

Vice President for Academic Affairs may “consult with” the

faculty member at issue “at the request of the faculty member.”

Id. After the informal inquiry, if the Provost and Vice

President for Academic Affairs “determines that . . .

termination . . . is warranted by the facts, he or she shall

provide the faculty member with a written statement of cause,

which shall describe with specificity the conduct upon [which]

the proposed sanction is based, together with a description of

the rights of the faculty member to appeal the action, the

available alternatives through which an appeal may be taken and

his or her right to assistance by a representative of his or her

choice throughout such proceedings.” Id. The termination is

“immediately effective” if the faculty member chooses not to

appeal. Id. at 22-23.

If the faculty member decides to pursue an appeal, the

appeal is “directly to the President.” Id. at 23. The President

10 then “may conduct such inquiry as he or she may deem

appropriate” and shall “either sustain the recommended penalty,

modify[] it to a lesser disciplinary or adverse action, use

corrective action[,] or dismiss the matter.” Id. If the

President sustains the termination, the faculty member may

appeal that decision using the grievance and arbitration

procedure in the Agreement. Id. at 20, 23.

The grievance and arbitration provision of the Sixth Master

Agreement allows a party to file a grievance when “there has

been a violation, misinterpretation, or improper application of

the terms and conditions of this Agreement.” Id. at 14. As noted

above, the Agreement also explicitly states that a grievance may

be filed after the University President sustains a termination

decision. Id. at 20, 23. Throughout the grievance process, the

parties are obligated to “make available information reasonably

necessary to process the grievance,” subject to a few exceptions

for “legally privileged” information, “confidential personal

information,” and confidential “internal University

communications.” Id. at 15.

The grievance procedure begins with filing the “Official

Grievance Form” with the “lowest appropriate management level

having authority to dispose of the complaint.” Id. at 16. If the

matter cannot be resolved at the initial level, it will proceed

to the first appellate level and the person at that level shall

11 “investigate the matter as deemed appropriate, discuss the

matter with the grievant and/or the Associate President or

designee(s) and . . . submit a written decision, including

reasons for said decision, to the grievant and the Association.”

Id. That decision may then be appealed to the “next appellate

levels and will stop at the President’s level.” Id. The

appellate levels in ascending order are: “(i) Department Chair;

(ii) Dean; (iii) Provost/Provost and Vice President for Academic

Affairs; and (iv) President.” Id. If the final decision at the

President’s level is not satisfactory, “the Association, and

only the Association, may . . . commence an arbitration

proceeding by serving the other party with written notice of

intent to arbitrate.” Id. at 17.

C. Adequacy of Post-Deprivation Procedures

Defendants argue that the Sixth Master Agreement provides

“a vigorous post-deprivation procedure [that] was available to

Plaintiff to challenge his termination.” Defs.’ Mot., ECF No. 54

at 28. Dr. Cohen denies this characterization and claims that he

“was afforded no meaningful appeal process” and that “genuine

fact issue[s]” exist around “the risk of erroneous deprivation[]

and the value of additional or substitute procedural

safeguards.” Pl.’s Opp’n, ECF No. 57 at 5, 6. The Court agrees

with Defendants because: (1) the record belies Dr. Cohen’s

claims of disputed material facts; and (2) the Court concludes

12 that the procedures provided in the Sixth Master Agreement meet

the minimum requirements for due process.

1. Mathews Factors Analysis

As noted previously, three factors must be balanced to

determine whether post-deprivation procedures comport with due

process: (1) the private interest affected, in this case Dr.

Cohen’s right to employment unless terminated properly for

cause; (2) the risk of erroneous deprivation of that interest

through the existing procedures and the likely value of

additional or substitute safeguards; and (3) the Government’s

interest, including the function involved and the burdens of

additional or substitute procedural safeguards. See Mathews,

.

Dr. Cohen’s arguments in opposition to summary judgment

focus on the second Mathews factor, claiming that the Agreement

creates a “risk of erroneous deprivation” because “there appears

to be a factual dispute regarding whether or not Sessoms carried

out an independent review at all of Dr. Cohen’s appeal” and

“there are factual issues regarding the scope and/or

meaningfulness of Sessoms’ purported independent review.” Pl.’s

Opp’n, ECF No. 57 at 6. To support his claim, Dr. Cohen cites to

portions of President Sessoms’s deposition, where he explains

his reasoning for sustaining Dr. Cohen’s termination. Pl.’s

Opp’n, ECF No. 57 at 6-7. Dr. Cohen concludes that such reasons

13 “could not have been cause for [his] termination” and thus

argues that such false reasons are proof of President Sessoms’s

lack of independent review.

The Court disagrees.

Dr. Cohen’s argument and supporting deposition testimony

are unpersuasive because they are irrelevant to the due process

claim. First, his claim about President Sessoms’s purported lack

of independence is irrelevant because it does not address the

Sixth Master Agreement’s procedures. See Minute Order (Dec. 3,

2018). Dr. Cohen does not use President Sessoms’s testimony to

argue that the Agreement itself mandated a lack of independent

review. Therefore, any bias he implies President Sessoms acted

on is not probative of whether the Agreement’s procedures

themselves, when carried out properly, deprive terminated

faculty members of due process. 4

4 Relatedly, the Court also notes that Dr. Cohen’s claims and the cited deposition testimony about his termination go beyond the scope of this Court’s discovery order. In December 2018, this Court specified that Dr. Cohen was not entitled to discovery regarding “defendants’ decision to terminate him.” Minute Order (Dec. 3, 2018). Defendants’ counsel objected to Dr. Cohen’s counsel’s line of questioning about the termination decision during President Sessoms’s deposition, but counsel persisted nonetheless. See Deposition of Allen Sessoms, ECF No. 57-4 at 36 (Defendants’ counsel noting that Plaintiff’s counsel was “not allowed to inquire about the Defendant’s decision to terminate the Plaintiff” based on this Court’s “discovery order”); id. at 35 (Defendants’ counsel objecting to Plaintiff’s counsel’s questions that “ha[d] nothing to do with a post-termination deprivation of due process”). The discovery order reminded the parties of the “quite limited” remaining issues in the case and 14 Furthermore, Dr. Cohen’s argument is irrelevant because it

does not substantively attack the independence of President

Sessoms’s review; rather, it challenges the outcome of that

review. Although he may not agree that failure to complete

evaluations warrants dismissal, this challenge is about the

result of the appeal as opposed to the process provided. It is

therefore beyond the purview of the Due Process Clause. See

Bishop v. Wood,

(1976) (“The Due Process

Clause . . . is not a guarantee against incorrect or ill-advised

. . . decisions.”); Nat’l Collegiate Preparatory v. D.C. Charter

Sch. Bd., No. 19-1785,

, at *3 (D.D.C. Dec. 11,

2019) (observing that the due process clause requires

“distinguish[ing] between outcomes and procedures” and that “the

due-process clause does not protect any particular outcome;

instead, it merely ensures that the procedures that led to such

outcome are fair”).

Turning to the relevant evidence in the record, the

Agreement provides that the President shall review the

termination decision from the Provost and Vice President for

Academic Affairs. Sixth Master Agreement, ECF No. 54-2 at 23.

The Agreement then provides for the President to “conduct such

denied discovery for issues “which are not relevant to this case.” Minute Order (Dec. 3, 2018). 15 inquiry as he or she may deem appropriate.”

Nothing in this

procedure suggests a lack of independence in the President’s

review. The President is not involved in the initial termination

decision, but rather is limited to reviewing the Provost and

Vice President for Academic Affairs’ reasoning. Since the

President is allowed to conduct an independent inquiry and

review the Provost and Vice President for Academic Affairs’

written statement of cause for termination, the Court does not

agree that a risk of an erroneous deprivation is “essentially

guaranteed” by this process. See Pl.’s Opp’n, ECF No. 57 at 7.

Dr. Cohen lists a variety of other contentions with the

Sixth Master Agreement’s process, which also seem to concern the

risk of an erroneous deprivation. He claims that in the existing

process, there was: “(1) no attempt at any new fact finding that

was not pre-termination, (2) no independent panel of senior

faculty convened to investigate the charges against him, (3) no

communications or consultations with anyone else or use of any

other documents – other than pre-termination documents . . . (4)

no ‘hearing’ as is customary and standard for tenured professors

at all Universities, (5) a concerted effort to bypass all

District of Columbia employment regulations under the CMPA . . .

[and] (6) no consideration of Constitutional issues of due

process under Mathews v. Eldridge.” Pl.’s Opp’n, ECF No. 57 at

5. Dr. Cohen fails to provide any substantive argument regarding

16 these six complaints and that is grounds enough for rejecting

the arguments. See United States v. TDC Mgmt. Corp.,

(D.C. Cir. 2016) (holding an argument forfeited

because a party did not “further develop it . . . after [a]

single, conclusory statement” (internal quotation marks

omitted)); Cox v. Nielsen, No. 16-1966,

, at *14

(D.D.C. Mar. 26, 2019) (holding argument forfeited because

“Plaintiff makes no reference to the record evidence and no

citation to authority in support” of the argument). However, the

Court will briefly address each in order to fully consider the

second Mathews factor.

Dr. Cohen’s first and third concerns address fact finding

and the use of documents in the post-termination process. He

points to no caselaw that requires “new fact finding” or the use

of non-pre-termination documents in order to comport with due

process. The Sixth Master Agreement allows the President, in the

appeal process, to conduct any inquiry they deem necessary to

make their decision about the appeal. See Sixth Master

Agreement, ECF No. 54-2 at 23. Furthermore, in the grievance

process that follows the President’s appeal, the parties have an

obligation under the Agreement to “make available information

reasonably necessary to process the grievance.” Sixth Master

Agreement, ECF No. 54-2 at 15. Thus, if additional information

is necessary to properly assess the termination decision, such

17 information is required by the Agreement to be made available.

Therefore, the Agreement itself does not impinge any fact

finding necessary to carry out due process. To the extent Dr.

Cohen is making an argument about what actually occurred in his

appeal, that inquiry is again beyond the scope of the issues

that remain in this case.

Dr. Cohen’s fourth concern is the lack of a “hearing,”

which he claims is “customary” at “all Universities.” However,

due process does not require a formal “hearing,” but rather, an

“opportunity to be heard.” UDC Chairs Chapter,

.

The Sixth Master Agreement provides such an opportunity pre-

deprivation, when it requires any termination to be preceded by

“a discussion between the faculty member and a University

administrator.” Sixth Master Agreement, ECF No. 54-2 at 21. It

also provides such an opportunity post-termination through the

direct appeal of termination to the President and the following

grievance process. Specifically, the opportunity may be

presented if the President chooses to conduct an inquiry during

the appeal. Id. at 23. But if not, the initiation of the

grievance process begins with filing an official grievance form,

which requires a grievant—in this case, a terminated faculty

member—to complete a “narrative,” stating “to the extent known,

the nature of the grievance, the act(s) of commission or

omission giving rise to it, [and] the date(s) and the person(s)

18 responsible for those act(s),” allowing a grievant to “[a]ttach

a separate sheet if needed, and attach any relevant

documentation.” Id. at 16, 78; see Cleveland Bd. of Educ. v.

Loudermill,

(1985) (“some opportunity for the

employee to present his side of the case is recurringly of

obvious value in reaching an accurate decision”). Thus, even

though the Agreement may not provide for a formal “hearing,” the

Agreement comports with due process by giving terminated faculty

members several opportunities to be heard and present their case

throughout the process.

Dr. Cohen’s second concern is the lack of an “independent

panel of senior faculty convened to investigate the charges

against the Plaintiff.” Again, he points to no authority

supporting the proposition that such a panel is necessary for

due process. The Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) has noted that in some circumstances,

where the inquiry is “particularly subjective,” due process may

require review by a second, separate decisionmaker. See Barkley

v. U.S. Mashals Serv. ex rel. Hylton,

(D.C. Cir.

2014) (discussing such a situation in Propert v. District of

Columbia,

(D.C. Cir. 1991)). However, Plaintiff

does not argue that those circumstances are present here, and a

review of the factual record does not raise such a concern. As

noted above, the Sixth Master Agreement allows a faculty member

19 to be terminated only if the University can prove “gross

professional misconduct, conviction of a felony or crime of

moral turpitude, or fraud in the securing of employment or

promotion, or . . . professional misconduct, or a pattern of

dereliction of duties or responsibilities, for which the faculty

member was previously suspended.” Sixth Master Agreement, ECF

No. 54-2 at 21. This list is not “particularly subjective,” and

instead suggests that only egregious conduct will be considered

and in some cases suspension must precede a termination. Thus,

because the termination criteria is not “particularly

subjective,” the Court does not conclude that appeal to a

second, separate decisionmaker—in the form of an independent

panel of senior faculty or otherwise—is required by due process.

The objectivity of the inquiry and the fact that the University

President is not involved in the initial determination to

terminate the faculty member is sufficient process to protect

against a risk of erroneous deprivation. See Barkley,

.

Dr. Cohen’s fifth and sixth concerns also do not implicate

a due process violation. Although he faults the Agreement for

not providing for additional protections under the CMPA, a CMPA-

sanctioned collective bargaining agreement that makes its own

remedies exclusive is not in itself a violation of due process.

See District of Columbia v. Thompson,

(D.C.

20 1991) (noting that “CMPA and a CMPA-sanctioned union contract

are alternative governing documents generally covering the same

scope of employer-employee rights and duties”); MTD Op., ECF No.

31 at 11, 19 (noting that the Sixth Master Agreement is a “CMPA-

sanctioned” collective bargaining agreement). The relevant

question for such an agreement is the same as for all procedural

due process challenges—whether the remedies provided meet the

minimum requirements of due process. See Zinermon,

. Similarly, Dr. Cohen’s sixth concern about the Mathews

factors is being specifically addressed in this opinion.

Therefore, overall, the Court is not persuaded that the Sixth

Master Agreement’s post-termination procedures have a high risk

of erroneous deprivation.

Although some of Dr. Cohen’s concerns identify potential

additional safeguards for due process, he does not advocate for

them as such. In a separate section of his brief, Dr. Cohen

claims that there is a “factual dispute regarding the

availability of additional procedural safeguards that are now

codified in District of Columbia Municipal Regulations.” Pl.’s

Opp’n, ECF No. 57 at 10. He concludes that “[w]here procedural

safeguards are subsequently adopted, where they were not

available before, an inference can be made that the prior

process was not sufficient.”

However, Dr. Cohen again

provides no legal or factual support for this “inference.” And

21 the Court does not agree with his logic. Although subsequent

procedural safeguards may further ensure that a process comports

with due process, the development of later procedural safeguards

does not inherently mean that a prior process was insufficient.

Furthermore, Dr. Cohen does not specify which “additional

procedural safeguards” were codified and why they might be

necessary to comport with due process; instead, he merely cites

the regulations with no explanation. See Pl.’s Opp’n, ECF No. 57

at 10. Thus, Dr. Cohen fails to present any argument at all

about what additional procedures would be necessary for the

Sixth Master Agreement to comport with due process. 5 This is

fatal to his due process claim as a matter of law and is an

independent reason for why the Court is granting summary

judgment. See Statewide Bonding, Inc. v. U.S. Dep’t of Homeland

Sec.,

(D.C. Cir. 2020) (holding that a

Plaintiff’s due process claims “fail for an independent reason—

[Plaintiff] has not suggested what plausible alternative

safeguards would be constitutionally adequate”); Doe,

(“a procedural due process claim requires the plaintiff to

identify the process that is due”).

5 In his opposition to Defendants’ Motion to Dismiss, Dr. Cohen argued that “impartial judicial review” was required to comport with due process. See MTD Op., ECF No. 31 at 23. But he does not pursue this argument in his opposition to the pending Motion for Summary Judgment. See generally Pl.’s Opp’n, ECF No. 57. 22 Although neither party addresses the other two Mathews

factors, the Court briefly addresses those factors in order to

balance the competing interests. In terms of the private

interest affected, the D.C. Circuit and the Supreme Court have

recognized a significant private interest in retaining

employment. See Washington Teachers’ Union Local No. 6 v. Bd. of

Educ. of D.C.,

(D.C. Cir. 1997); Loudermill,

. The Supreme Court has also recognized a

governmental interest “in the expeditious removal of

unsatisfactory employees and the avoidance of administrative

burdens.” Loudermill,

.

Turning now to balancing the identified factors in this

case, the Court concludes that the existing post-termination

processes under the Sixth Master Agreement are sufficient to

satisfy due process. The Court acknowledges Dr. Cohen’s

significant private interest in his continued employment but

also notes that he does not argue that his interest is so

substantial as to require a pre-termination hearing. See

Loudermill,

. Additionally, because tenured

faculty terminations are subject to the for cause provision and

cause is explicitly defined in the agreement to mean

“professional misconduct or a pattern of dereliction of duties

or responsibilities,” see Sixth Master Agreement, ECF No. 54-2

at 20; the University’s interest in expeditiously separating

23 unsatisfactory employees who are hindering its purpose is

especially prevalent. Finally, as noted above, given that the

terminated faculty member has—as set forth in the Sixth Master

Agreement—the ability to appeal the decision of termination to

the President and then to further appeal (with aid from the

Union) through the grievance process, the Court concludes that

any risk of erroneous deprivation of employment is minimal. See

Mathews,

(“procedural due process rules are

shaped by the risk of error inherent in the truthfinding process

as applied to the generality of cases, not the rare

exceptions”).

Therefore, the Court concludes that Defendants are entitled

to summary judgment for two reasons. First, Dr. Cohen fails to

identify and advocate for additional procedural safeguards that

he believes are necessary for the Sixth Master Agreement to

comport with due process. Second, the Court’s analysis of the

Mathews factors demonstrates that the Sixth Master Agreement’s

existing post-termination procedures adequately comport with due

process.

2. Other Challenges

Dr. Cohen makes several other claims of “factual issues,”

which do not map onto the Mathews factors and which do not

undermine the Court’s reasons for granting summary judgment. He

claims that there are factual disputes about the grievance

24 procedure, specifically “(1) what the ‘grievance procedure’

actually is, (2) whether [he] could invoke said procedure, (3)

whether [he] was ever informed of it, and (4) whether it would

have made any difference in the outcome of Dr. Cohen’s

termination.” Pl.’s Opp’n, ECF No. 57 at 7. The Court rejects

these claims as either directly belied by the record or

irrelevant to the remaining issues in this case.

Regarding the first two concerns, Dr. Cohen claims that the

“grievance procedure would not apply to him as he lost his

status under the Sixth Master Agreement once Sessoms denied his

appeal” and “the grievance procedure did not apply to

terminations.”

He fails however, to provide any evidentiary

support for these contentions, and the Sixth Master Agreement

explicitly contradicts these claims. The Agreement states that

the President’s appeal “if it relates to a non-probationary

faculty member and entails . . . termination . . . may be

appealed by the Association to arbitration in accordance with

the Grievance Procedure and Arbitration article.” Sixth Master

Agreement, ECF No. 54-2 at 23. The grievance procedure and

arbitration article states that such arbitration may be pursued

by the Association after exhaustion of all other levels of

appeal. Id. at 16-17. It does not state that terminated faculty

members “los[e] [their] status” to pursue an appeal once

terminated and in fact, Dr. Cohen was informed by the Union

25 President that he was able to file a grievance if his

termination was sustained by the President. 6 See Defs.’ Reply

SOMF, ECF No. 60 at 48. Thus, Dr. Cohen, as a terminated faculty

member who appealed his termination to the President, had—

according to the explicit terms of the Sixth Master Agreement—

the ability to appeal this termination through the grievance

procedure.

Dr. Cohen’s third concern that he was not “informed” about

the procedure, is not within the scope of the issues left in

this case. See MTD Op., ECF No. 31 at 28 (concluding that

Plaintiff’s remaining “relevant allegation . . . [was] that Dr.

Cohen was not provided with a meaningful opportunity to be heard

once he was terminated”). It is also belied by the record

because, as noted above, Dr. Cohen was informed of his right by

the Union President and the right was stated in the Agreement.

6 Dr. Cohen “[d]isagree[s]” with this fact but points to no evidence in the record to support his claim that he “could not file a grievance.” See Defs.’ Reply SOMF, ECF No. 60 at 48. Rather, the record shows that he was informed directly by the President of the Union that he could file a grievance and the explicit terms of the Sixth Master Agreement confirm this ability. To the extent Dr. Cohen was mistaken about his ability to file a grievance, that mistake is not a flaw of the process provided in the Sixth Master Agreement. See Barkley,

(finding procedures satisfied due process when any identified failure was a failure “in the individual’s response, not an inadequacy in the [given] procedures”). 26 Dr. Cohen’s last concern that the procedure may not have

“made any difference in the outcome of [his] termination,” is

the incorrect focus for a due process claim. As noted

previously, a due process claim does not focus on outcomes, but

rather only ensures that the procedures that generate an outcome

are fair. See Bishop,

.

Therefore, the Court concludes that Dr. Cohen has not

identified material factual disputes in the record and

Defendants are therefore entitled to summary judgment.

D. Individual Liability of President Sessoms and Provost Baxter

Because the individual liability of President Sessoms and

Provost Baxter is contingent on the Court’s finding of a due

process violation in the Sixth Master Agreement’s procedures,

see Minute Order (Dec. 3, 2018); the Court concludes that the

individual Defendants are also entitled to summary judgment.

Dr. Cohen attempts to avoid this conclusion by attacking

President Sessoms’s and Provost Baxter’s independence. See Pl.’s

Opp’n, ECF No. 57 at 10-11. However, this argument again exceeds

the scope of the issues remaining in this suit. The Court has

emphasized several times that the individual liability of

President Sessoms and Provost Baxter is limited only to

determining whether they enforced the purportedly

unconstitutional Sixth Master Agreement, not whether they

27 violated Dr. Cohen’s due process rights by not following the

Agreement. See MTD Op., ECF No. 31 at 40 (concluding that “Dr.

Cohen has stated a Section 1983 claim against Provost Baxter and

President Sessoms in their individual capacities insofar as he

alleged that they terminated him pursuant to the Sixth Master

Agreement” (emphasis added)); Minute Order (Dec. 3, 2018) (“The

remaining issues in this case are quite limited: (1) whether the

Sixth Master Agreement provided sufficient post-termination due

process and, if so (2) whether the two remaining individual

defendants enforced the purportedly unconstitutional policy.”

(emphasis added)).

V. Conclusion

Accordingly, for the reasons set forth in this Memorandum

Opinion, the Defendants’ Motion for Summary Judgment, see ECF

No. 54, is GRANTED. A separate Order accompanies this Memorandum

Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge December 5, 2023

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