Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 1 of 30

U N I T E D ST A T ES D IST R I C T C O U R T
F O R T H E D IST R I C T O F C O L U M B I A

____________________________________
)
AYANNA BLUE, )
)
Plaintiff, )
) Case Number: 10-1504 (RWR)
v. )
)
DISTRICT OF COLUMBIA, )
et al ., )
)
Defendants. )
____________________________________)

!"#"$!%$&S’ !IS&+I,& -# ,-.U01I%, D IST R I C T O F C O L U M B I A PU B L I C

SC H O O LS, A N D M I C H E L L E +2""’S 0-&I-$ &- !IS0ISS PPU RSU A N T T O F E D.
R. C I V . PR O 12(b)(1) A N D 12(b)(6)

Pursuant to Fed. R. Civ. P. 12(b)(1) and (6), and for the reasons set forth in the

accompanying memorandum of points and authorities, Defendants, the District of Columbia

(hereinafter*+the*District),*the*District*of*Columbia*Public*Schools**(hereinafter*+DCPS9) and

Michelle Rhee (hereinafter*+Chancellor*Rhee9)*(collectively*+District Defendants9),*by and

through undersigned counsel, move this Court for an order dismissing, with prejudice, the above-

captioned complaint on the following grounds:

I. The District is Not Liable for Acts the Outside the Scope*of*Weismiller@s*
Employment

II. Plaintiff@s*Claims*Against*DCPS Must Be Dismissed As the Agency is +Non Sui

Juris9

III. Plaintiff@s*Claims*Against*Chancellor*Rhee*in*Her*Official*Capacity*Must*Be*
Dismissed

IV. Plaintiff@s*Due*Process*Claim*Alleging*a*Violation*of*Her*Bodily*Hntegrity*is not

Actionable

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 2 of 30

V. Plaintiff Can State No Claim for Gender Discrimination in Violation of the Equal
Protection Clause

VI. The Court Lacks Jurisdiction to Decide Plaintiff@s*Equal Protection Claim

VII. Plaintiff Lacks Standing to Pursue an Equal Protection Claim Based On

Generalized Grievances

VIII. Plaintiff Fails to State a Claim Pursuant to 20 U.S.C. § 1681.

IX. The*Court*Lacks*Jurisdiction*Over*Plaintiffs@*Common*Law*Claims*Against the

District As Plaintiff Failed to Comply with D.C. Code § 12-309

X. Plaintiff@s*Negligent Supervision Claim Fails For Lack of an Antecedent act of

Negligence

XI. Plaintiff@s*Negligent*Hiring /Retention Claim Fails For Lack of an Antecedent

Act of Negligence

XII. Plaintiff Fails to State a Claim for Intention Infliction of Emotional Distress

XIII. Plaintiff@s*claim*for*Breach*of*Fiduciary*Duty*fails*as*a*Matter of Law

For the above reasons, as set forth more fully in the accompanying memorandum

of points and authorities, the District Defendants must be dismissed from this suit.

Respectfully submitted,

PETER J. NICKLES
Attorney General for the District of Columbia

GEORGE C. VALENTINE
Deputy Attorney General, Civil Litigation Division

/s/Erica Taylor McKinley

ERICA TAYLOR MCKINLEY [467884]
Chief, Section II
Civil Litigation Division

/s/ Denise J. Baker

DENISE J. BAKER [493414]
Assistant Attorney General
441 Fourth Street, N.W., 6th Floor
Washington, D.C. 20001
(202) 724-6644 (telephone)

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 3 of 30

(202) 741-8800 (fax)

E-mail: Denise.baker@dc.gov

Counsel for the Defendants

L O C A L R U L E L C vR 7 C E R T I F I C A T I O N

Pursuant to LCvR 7(m) and due to the fact that this is a dispositive motion, no consent for

this motion was sought from Plaintiff. A LCvR 9(a) supporting memorandum and a LCvR 7(c)

proposed order accompany this motion.

/s/ Denise J. Baker

DENISE J. BAKER [493414]
Assistant Attorney General
441 Fourth Street, N.W., 6th Floor
Washington, D.C. 20001
(202) 724-6644 (telephone)
(202) 741-8800 (fax)
E-mail: Denise.baker@dc.gov

3
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 4 of 30

U N I T E D ST A T ES D IST R I C T C O U R T
F O R T H E D IST R I C T O F C O L U M B I A

____________________________________
)
AYANNA BLUE, )
)
Plaintiff, )
) Case Number: 10-1504 (RWR)
v. )
)
DISTRICT OF COLUMBIA PUBLIC )
SCHOOLS, et al ., )
)
Defendants. )
____________________________________)

0"0-+%$!U0 -# 3-I$&S %$! %U&2-+I&4 I$ SU33-+& -# !"#"$!%$&S’

M O T I O N T O D ISM ISS

Defendants, the District*of*Columbia*(hereinafter*+the*District9),*District of Columbia

Public*Schools*(hereinafter*+DCPS9)*and*Michelle*Rhee*(hereinafter*+Chancellor*Rhee9)*

(collectively*+District Defendants9),*by*and*through*undersigned*counsel,*move*this*Court*for*an*

order dismissing, with prejudice, the above-captioned complaint since it fails to state a claim

against these defendants and, in the alternative, these defendants have a full and complete legal

defense. In support of their motion, the District Defendants states as follows.

F A C T U A L A N D PR O C E D U R A L B A C K G R O U N D

On September 21, 2010, Plaintiff Ayanna*Blue*(hereinafter*+Plaintiff9)*filed an amended

complaint against the District Defendants, and Defendant Weismiller (+Weismiller9).**Plaintiff

asserted common law claims for negligent supervision (Claim I), negligent hiring and retention

(Claim II), intentional infliction of emotional distress (Claim III), and breach of fiduciary duty

(Claim IV). Plaintiff also alleged multiple due process and equal protection violations under the

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 5 of 30

Fifth Amendment pursuant to 42 U.S.C. § 1983 (Claim IV), and a claim for damages under 20

U.S.C. § 1681 (Count IV).

Plaintiff@s claims arise out of her sexual relationship with a former DCPS teacher,

Weismiller, and alleged systemic deficiencies in the DCPS school that Plaintiff attended. See

Am. Complaint at ¶¶ 1 and 41-46. Plaintiff (who is now 20 years old) alleges that Weismiller

initiated a sexual relationship with her when she was an eighteen year old special education

student at the Transition Academy at Shadd. See id. Plaintiff alleges that the relationship started

on November 19, 2008, when she and Weismiller had sexual intercourse in his car. See id. at ¶

19. According to Plaintiff, the sexual relationship lasted for more five months during the 2008-

2009 school year and continued through April 2009. See id. at ¶¶ 1, 20.

Plaintiff further claims that while she attended Shad, DCPS mismanaged the school. See

id. at ¶¶ 41-46. Plaintiff asserts that Shadd was a failure, as the school purportedly had no school

nurse, insufficient staff and textbooks, inadequate classroom staffing, insufficient classroom

control, uncertified teachers, and inadequate psychological services for the students. See id. The

students also engaged in frequent outbursts of violence and fights. See id. Plaintiff asserts that

as a emotionally disturbed, special education student, the District treated her differently by

placing her at Shadd, when other special education students attended other schools. See id. at ¶¶

82.

In May 2009, DCPS conducted an investigation after learning that Plaintiff was pregnant.

See Am. Complaint at ¶ 24. DCSPS later terminated Weismiller in October 2009 as part of a

reduction in force. Plaintiff filed the instant action on September 21, 2010. For the reasons

stated below, Plaintiff@s*claims*should*be*dismissed, and the Court should decline to exercise

supplemental jurisdiction over her common law claims.

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 6 of 30

ST A N D A R D O F R E V I E W

I. Motion to Dismiss Pursuant to Fed. R. C iv. P. 12 (b) (6)

A*complaint*must*contain*a*+short*and*plain statement of the claim showing that the

pleader*is*entitled*to*relief.9**Fed.*R.*Civ.*P.*8(a)(2).**This*pleading*standard*+does*not*require*

Tdetailed*factual*allegations,@*but*it*demands*more*than*an*unadorned,*the-defendant-unlawfully-

harmed-me accusation.9** Ashcroft v. Iqbal , 556 U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting

Bell Atlantic Corp. v. Twombly,*550*U.S.*544,*555*(2007)).**+A*pleading*that*offers*Tlabels*and*

conclusions@*or*Ta*formulaic*recitation*of*the*elements*of*a*cause*of*action*will*not*do.@9**Id.

(quoting Twombly,*550*U.S.*at*555).**+Nor*does*a*complaint*suffice*if*it*tenders*Tnaked*

assertions@*devoid*of*Tfurther*factual*enhancement.@9** Id. (quoting Twombly, 550 U.S. at 557)

(alteration marks omitted).

To survive a Rule 12(b)(6) motion*to*dismiss,*a*complaint*+must*contain*sufficient*

factual*matter,*accepted*as*true,*to*Tstate*a*claim*to*relief*that*is*plausible*on*its*face.@9** Id.

(quoting Twombly,*550*U.S.*at*570).**+A*claim*has*facial*plausibility*when*the*plaintiff*pleads*

factual content that allows the court to draw the reasonable inference that the defendant is liable

for*the*misconduct*alleged.9** Id. (citing Twombly, 550 U.S. at 556). This facial plausibility

standard*+asks*for*more*than*a*sheer*possibility*that*a*defendant*has*acted*unlawfully.9** Id.

(citing Twombly,*550*U.S.*at*556).**+Where*a*complaint*pleads*facts*that*are*merely*consistent*

with*a*defendant@s*liability,*it*stops*short*of*the*line*between*possibility*and*plausibility*of*

entitlement*to*relief.9** Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks

omitted).

Although*the*allegations*in*the*complaint*must*be*taken*as*true,*the*Court*is*+not*bound*

to*accept*as*true*a*legal*conclusion*couched*as*a*factual*allegation.9** Twombly, 550 U.S. at 555

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 7 of 30

(internal quotation marks omitted); see also Iqbal,*129*S.*Ct.*at*1949*(+the*tenet*that*a*court*must*

accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions9).**+]W^here*the*well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged – but*it*has*not*Tshown@*– Tthat*the*

pleader*is*entitled*to*relief.@9** Iqbal, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2))

(alteration marks omitted). Under the above standards, Plaintiff can state no claims against the

District Defendants.

I I. Motion to dismiss for L ack of Jurisdiction Pursuant to Fed. R. C iv. P. 12(b)(1)

Under Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has

jurisdiction. See U.S. Ecology, Inc. v. U.S. Dep't of Interior , 231 F.3d 20, 24 (D.C. Cir. 2000);

see also Grand Lodge of F raternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13 (D.D.C.

2001) (a court has an +affirmative obligation to ensure that it is acting within the scope of its

`urisdictional*authority.9).**+T[P]laintiff's factual allegations in the complaint . . . will bear closer

scrutiny in*resolving*a*12(b)(1)*motion@ than in resolving a 12(b)(6) motion for failure to state a

claim.9** Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Additionally, a court may

consider material other than the allegations of the complaint in determining whether it has

jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as

true. See Jerome Stevens Pharm., Inc. v. F DA , 402 F.3d 1249, 1253-54 (D.C. Cir. 2005);

E.E.O.C. v. St. F rancis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997).

Under the above standards, dismissal of certain claims in the Amended Complaint for lack of

jurisdiction is required.

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 8 of 30

ARGUMENT

I. T he District is Not L iable for A cts the O utside the Scope of :eismi>>er’s
E mployment

Plaintiff@s*claims*against*the*District*Defendants*are*not*actionable*as*Weismiller*acted*

outside the scope of his employment. An employer is only liable for the wrongful acts of its

employee*only*if*that*conduct*+is*actuated,* at least in part, by a purpose to serve the

]employer^.9** Brown v. Argenbrights Security, 782 A.2d 752, 758 n. 8 (D.C. 2001) (quoting

Restatement (Second) of Agency § 228) (emphasis in original). Thus, where an employee has

acted*+solely*for*the*]employee@s^*own*purposes,9*the*employee has engaged in conduct beyond

the scope of employment, and liability cannot be imputed to the employer. Weinberg v.

Johnson, 518 A.2d 985, 990 (D.C. 1986) (quoting Penn Central Transportation Co. v. Reddick,

398 A.2d 27, 30 (D.C. 1979)); see also Hechinger Co. v. Johnson, 761 A.2d 15, 24 (D.C. 2000)

(+Hf*the*employee@s actions are only done to further his own interests, the employer will not be

held*responsible.9)**While*the*issue*of*whether*a*tort*was*committed*within*the*scope*of*

employment generally*is*a*question*of*fact*for*the*`ury,*+when*all*reasonable*triers*of*fact*must*

conclude*that*the*employee@s*act*was*independent*of*the*employer@s*business*and*solely*for*the*

employer@s*personal*benefit,*then*the*issue*is*a*question*of*law.9**Rendall-Speranza v. Nassim,

942 F. Supp. 621, 626 (D.D.C. 1996).

Hn*the*instant*case,*Weismiller@s*sexual*relationship*with*Plaintiff, a special education

student, was solely for his personal benefit and*not*in*further*of*the*District@s*efforts to provide

a free and adequate public education to its students. No liability can lie and these facts as a

matter of law. Plaintiff@s*Amended Complaint should be dismissed.

I I. 3>aintiff’s ,>aims %gainst D C PS M ust Be Dismissed As the Agency is D Non Sui

JurisE

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 9 of 30

DCPS is a District of Columbia agency. The D.C. Council established DCPS as a

separate cabinet-level agency, subordinate to the Mayor, within the executive branch of the

District of Columbia government. As a matter of well-settled law, agencies and departments

within the District of Columbia government are not suable as separate entities. Miller v. Spence,

330 A.2d 250, 251, n. 1 (D.C. App. 1974); Roberson v. District of Columbia , 359 A.2d 28, 31, n.

4 (D.C. App. 1976). Accordingly, Plaintiff@s*claims*against*DCPS*should be dismissed. Ali v.

District of Columbia , 697 F. Supp. 2d 88, 91 (D.D.C. 2010).

I I I. 3>aintiff’s ,>aims %gainst ,hance>>or +hee in 2er -fficia> ,apacity 0ust 1e

Dismissed

Plaintiff can state no claim against Chancellor Rhee. A suit against a District official in

his or her official capacity is merely a suit against the District, itself. See Atchinson v. District of

Columbia, 73 F.3d 418, 424 (D.C. 1996) ( Kentucky v. Graha m, 473 U.S. 159, 166 (1985)).

Courts have routinely dismissed claims against individuals named in their official capacity as

+redundant*and*]an^*inefficient*use*of*`udicial*resources.9** Cotton v. District of Columbia, 421

F.Supp. 2d 83, 86 (D.D.C.2006); see also Robinson v. District of Columbia, 403 F. Supp. 2d 39,

49 (D.D.C. 2005); Jenkins v. Jackson, 538 F. Supp. 2d 31, 33-34 (D.D.C. 2008). The U.S.

Supreme Court has explained the reasoning of this approach as follows:

official-capacity*suitsb9]g^enerally*represent*only*another*way*of
pleading an action against an entity of which an*officer*is*an*agent.9*As
long as the government entity receives notice and an opportunity to
respond, an official-capacity suit, is in all respects other than name, to be
treated*as*a*suit*against*the*entity.*bThe*real*party*in*interest*is*the
entity. Thus,*ba*plaintiff*seeking*to*recover*on*a*damages*`udgment*in*an
official-capacity suit must look to the government entity itself.

Graham, 473 U.S. at 165-66. Because Plaintiff@s claims against Chancellor Rhee in her

official capacity are redundant of and properly construed as claims against the District, the

claims should be dismissed.

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 10 of 30

I V. 3>aintiff’s !ue 3rocess ,>aim %>>eging a Iio>ation of 2er 1odi>y Integrity is not
A ctionable

As a threshold matter, municipal liability under Section 1983 is severely limited. See

Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A Section 1983

plaintiff must identify a municipal policy, custom, or*practice*that*caused*the*plaintiff@s*alleged

constitutional injury. Board of the County Commissioners of Bryan County v. Brown, 520 U.S.

397, 403 (1997). As explained in Monell ,*+a*local*government*may*not*be*sued*under*c*1983*for*

an injury inflicted solely by its employees or agents. Instead, it is when execution of a

government@s*policy*or*custom*b*inflicts*the*in`ury*that*the*government*as*an*entity*is*

responsible*under*c*1983.9**436*U.S. at 694.

The*Supreme*Court*has*further*instructed*that*+at*the*very*least*there*must*be*an*

affirmative link between the*policy*and*the*particular*constitutional*violation*alleged.9** City of

Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985). The municipal policy, practice, or custom

must*be*the*+moving*force9*behind*the alleged constitutional injury. See Monell, 436 U.S. 658.

Section 1983 liability is not imposed where the municipality merely employs an alleged

tortfeasor, see id., or +when*the*municipality*was*not*itself*at*fault.9** City of Oklahoma , 471 U.S.

at 818 (emphasis added). Plaintiff@s*complaint*fails*to*meet these stringent standards.

Plaintiff@s*due*process*claim*under*Section*1983*does*not*plausibly*suggest an

entitlement to relief. See Iqbal , 129 S. Ct. at 1949-51. Only the most egregious and arbitrary

acts of government officials are sufficient to trigger the substantive due process clause. See

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (citing Collins v. Harker Heights, 503

U.S.*115,*129*(1992)).**The*conduct*must*be*+so*egregious,*so*outrageous*that*it*may*fairly*be*

said*to*shock*the*contemporary*conscience.9** Lewis, 523 U.S. at 847 n.8; see also Collins, 503

U.S. at 128; Butera v. District of Columbia , 235 F.3d 637, 651 (D.C. Cir. 2001). The action

10
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 11 of 30

most*likely*to*rise*to*the*+conscious*shocking*level,9*is*conduct*intended*to*in`ure*the*plaintiff*in*

a way unjustifiable by any government interest. F OP v. Williams, 375 F.3d 1141, 1145 (D.C.

Cir. 2004) (quoting Lewis, 523 U.S. at 849 (citing Daniel v. Williams, 474 U.S. 327, 331 (1986)).

This stringent requirement exists to differentiate substantive due process from local tort law.

Butera v. District of Columbia , 235 F.3d 637, 651 (D.C. Cir. 2001).

Plaintiff@s*due*process*allegations*are*not*sufficient,*as*she*essentially*pleads*a*common*

law tort. Plaintiff claims, for example, that the District Defendants failed to respond

appropriately to allegations of sexual misconduct. See Am. Complaint at ¶ 76. Plaintiff also

alleges that the District Defendants inappropriately handled special education students at Shadd,

as*demonstrated*by*the*+many*failures9*at*the*school.**See id.*at*e78.**Plaintiff@s*allegations*do*

nothing more than allege a breach the applicable standard of care with respect to how the District

Defendants handled allegations of sexual misconduct, and educational and program issues

affecting the school as a whole. The Supreme Court has categorically rejected the notion that

negligently inflicted harm may provide the basis for a substantive due process claim. Lewis, 523

U.S. at 848-49.**Plaintiff@s*due*process*claim*must*be*dismissed*on*this*ground*alone.

The*above*authorities*reveal*a*larger*deficiency*in*Plaintiff@s*due*process claim. In Lewis

v. Sacramento,*the*Supreme*Court*held*that*a*plaintiff*must*satisfy*the*higher*+intent*to*harm9*

standard*to*prove*+conscience-shocking9*conduct*in*violation*of*the*due*process*clause.**523*

U.S. at 854. In imposing a higher standard of fault, the Court adopted the rule developed under

the Eighth Amendment that liability turns on whether the course of conduct was pursued as part

of*a*good*faith*effort*or*+maliciously*or*sadistically*for*the*purpose*of*causing*harm.9** Id. at 852-

53.

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 12 of 30

Plaintiff failed to plead the requisite culpability. Although she challenges the sufficiency

of*the*District*Defendants@*response*to*the*sexual*misconduct,*Plaintiff*alleges*no*facts*from*

which the Court can reasonably infer that in responding to the situation, the District Defendants

acted*+maliciously*or*sadistically*for*the*very*purpose*of*causing9*her*constitutional*harm.**

Lewis, 523 U.S. at 853.

Plaintiff likewise failed to plead the requisite causation sufficient to state a due process

violation. Causation would exist, for instance, if a District policymaker adopted a policy that

was*+the moving force9*behind*Plaintiff@s*alleged*due*process*violation,* Monell, 436 U.S. at 694;

City of St. Louis v. Praprotnik, 485 U.S. 112, 123-30 (1988), if a District policymaker knowingly

ignored an unconstitutional practice that was consistent enough to constitute custom, Praprotnik,

485 U.S. at 130, or if the District*Defendants*failed*to*respond*+to a need... in such a manner as

to*show*+deliberate*indifference9 to the risk that not addressing the need will result in

constitutional*violations.9* Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.Cir.2003)

(citing Canton v. Harris, 489 U.S. 378, 390 (1989) and Daskalea v. District of Columbia, 227

F.3d 433, 441 (D.C.Cir.2000)).

Plaintiff failed to plead the requisite causation. Plaintiff alleges no District policy that

authorizes teacher-student sexual intercourse, nor can she. Plaintiff likewise fails to allege that a

District policy maker knew of the sexual relationship between Plaintiff and Weismiller but

turned a blind eye. Instead, Plaintiff asserts that multiple low level District employees repeatedly

saw her with Weismiller and purportedly heard rumors that the two were involved. Plaintiff

likewise fails to plead that when faced with actual or constructive knowledge of the sexual

misconduct, a District policy maker adopted a policy of inaction. See F armer v. Brennan, 511

U.S. 825, 841 (1994). Plaintiff acknowledges that DCPS conducted an investigation in May

12
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 13 of 30

2009.**Plaintiff@s*Amended*Complaint*contains*no*allegation,*however,*that*the*sexual*

misconduct*continued*after*that*time*and*the*District*Defendants*failed*to*act.**No*+moving*

force9*is*sufficiently*pleaded*on*the*face*of*the*Amended*Complaint*as a matter of law.

Plaintiff@s*due*process*claim*alleging*a*violation*of*her*bodily*integrity*must*be*dismissed.

V. Plaintiff C an State No C laim for Gender Discrimination in V iolation of the E qual

Protection C lause

As explained above, to impose liability on the District Defendants under Section 1983,

plaintiff must show a violation of her constitutional rights, and that a District policy, practice, or

custom was the moving force behind that violation. F ierson v. District of Columbia , 506 F.3d

1063, 1066 (D.C. Cir. 2007) (citation omitted). Plaintiff can satisfy neither requirement, and

therefore, her equal protection claim fails as matter of law.

To state an Equal Protection violation, Plaintiff must plead and prove gender-based

discrimination. In addition,*+Tproof*of*]^*discriminatory*intent*or*purpose*is*required@*to*state*a*

claim. City of Cuyahoga Falls v. Buckeye Community Hope Foundation, 538 U.S. 188, 194 (2003)

(quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265)

(1977)); City of Memphis v. Greene,*451*U.S.*100,*119*(1981)*(+]T^he*absence*of*proof*of*

discriminatory intent forecloses any claim that the official action challenged in this case violates

the*fqual*Protection*Clause*.*.*.*.9)*(citations*omitted)g*Washington v. Davis, 426 U.S. 229

(1976) (disparate impact renders a facially-neutral law invalid only if traced to a discriminatory

purpose). Village of Arlington Heights v. Metropolitan Housing Development Corp., 97 S. Ct.

555, 563 (1977). The Supreme recently*explained*a*plaintiff@s*burden*at*the*pleading*stage*as*

follows:

Where the claim is invidious discrimination . . . plaintiff must plead and

prove that the defendant acted with discriminatory purpose . . . purposeful
discrimination requires more than +intent*as*volition*or*intent*as*awareness*

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 14 of 30

of*consequences.9**Ht*instead*involves*a*decisionmaker@s undertaking a
course*of*action*+*Tbecause*of,@*not*merely*Tin*spite*of,@*]the*action@s]
adverse*effects*upon*an*identifiable*group.9**Ht*follows*that,*to*state a
claim based on a violation of a clearly established right, respondent must
plead sufficient factual matter to show that [defendants] adopted and
implemented the . . . policies at issue not for a neutral . . . reason but for
the purpose of discriminating . . .

Iqbal, 129 S. Ct. at 1948; see also Atherton v. District of Columbia , 567 F. 3d 572, 681 (D.C.

Cir. 2009) (quoting same)); Johnson,*40*F.3d*at*339*(+Discriminatory*purpose*thus*implies*even*

more*than*an*awareness*of*consequences.9).**Plaintiff*cannot meet this stringent standard.

A. Plaintiff failed to sufficiently plead gender-based discrimination

Plaintiff@s*claim*that*she*suffered*gender-based discrimination because of her sex is not

actionable.**Plaintiff@s*theory*of*liability*is*that*the*District*Defendants*have*a*+custom,*policy*or*

practice of responding inappropriately to allegations of sexual misconduct that injures female

students,*as*shown*by*DCPS@s*failure*to*protect*Plaintiff,*failure*to*take*adverse*employment*

action against Weismiller in the face of widespread allegations of sexual misconduct, and failure

to*timely*acknowledge*reports*from*teachers*and*staff*of*a*suspected*sexual*relationship.9**See

Am. Complaint at ¶ 76.

Plaintiff@s*theory*is*inherently*flawed.*Sexual*misconduct*is*not an offense unique to, nor

confined to female students. Male and female students may be the victims of such offenses.

Tellingly, Plaintiff@s*Complaint*contains*no*allegation*from*which*this*Court*should*infer*

otherwise. Since male and female students may both be victimized by sexual misconduct,

Plaintiff cannot prove that the District committed an equal protection violation by purportedly

responding inappropriately to such claims. Quite the opposite, an ineffective policy of

responding to allegations of sexual misconduct in a public school affects male and female

victims alike.

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 15 of 30

Plaintiff@s*Complaint*likewise*contains*no*allegation*that*the*+inappropriately*handling*

]of^*special*education*students9*at*Shadd*and*the*purported*+failures9*of*the*school*( i .e., the

fighting in the hallways, insufficient textbooks, lack of certified teachers and a school nurse,

outbreaks of violence, inadequate staffing, lack of classroom control, and inadequate

psychological services) solely impacted the female students to the exclusion of males. See Am.

Complaint at 41-45,*78,*and*82.**The*only*reasonable*inference*on*the*face*of*Plaintiff@s*

Complaint is that the purported systemic failures at Shadd affected the student population as a

whole, boys and girls. Absent any allegation of gender-based discrimination because of her sex,

Plaintiff@s*equal*protection*claim*is*not*viable.

B. Plaintiff failed to sufficiently plead intentional discrimination

Plaintiff@s*equal*protection*claim*fails*on*another*ground.**Plaintiff@s*Complaint contains

no allegation from which the Court can reasonably infer that a District policymaker engaged in

intentional discrimination. Although Plaintiff challenges the adequacy of the District

Defendants@*policies*and*practices*for*responding*to*sexual allegations, Plaintiff failed to allege

(nor*can*she*show)*that*a*District*policy*maker*+selected*or*reaffirmed9*those*purported*policies*

and practices with the purpose of discriminating against female students at Shadd. See United

States v. Johnson, 40 F.32d 436, 439 (D.C. Cir. 1994), cert. denied, 514 U.S. 1041 (1995) (citing

F eeney, 442 U.S. at 279); Iqbal,*129*S.*Ct.*at*1948.**Plaintiff@s*Complaint*likewise*contains*no*

allegation that a District policy maker purposely allowed the alleged systemic deficiencies in the

school*to*exist*+Tbecause*of,@*not*merely*Tin*spite*of,@*]their^*adverse*effect*upon9*the*female*

students. See id.

As the Supreme Court explained in Personnel Administrator of Massachusetts v. F eeney,

99*S.*Ct.*2282,*2293*(1979)*+purposeful discrimination is the condition that offends the

15
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 16 of 30

Constitution.9**Plaintiff*failed*to*plead*this*critical*element*and*therefore*her*claim*necessarily*

fails. See, e.g., Ekwem, 666 F. Supp.2d at 79 (dismissing Equal Protection Claims where the

Court could*reasonably*infer*+that*defendants*were*Tmotivated*by*discriminatory*intent*or*

purpose@9)g*Atherton v. Dist. of Columbia Office of the Mayor , 567 F.3d 672, 688 (D.C.Cir.2009)

(affirming*dismissal*of*equal*protection*claims*where*plaintiffhs*+spare facts*and*allegations9*did*

+not permit the court to infer more than the mere possibility of misconduct.9)); McManus v.

Brooks, No. 00-7030, 2000 WL 1093069, at *1 (D.C. Cir. June 29, 2000) (affirming dismissal

for failure to state a claim under the Equal Protection Clause where plaintiff failed to allege facts

indicating*that*+actions were undertaken on a discriminatory basis or were motivated by

discriminatory*intent*or*purpose9)).

C. Plaintiff failed to sufficiently plead an unlawful policy, custom or practice

In support of her equal protection claim, Plaintiff alleges the conclusory allegation that

the*District*purportedly*had**a*+custom,*policy,*or*practice9*of*inappropriately*responding*to*

allegations of sexual misconduct against female students. See Am. Complaint at ¶ 76. Plaintiff

alleges no facts to support her allegation that the District maintained such a gender-based

discrimination policy, nor does the Complaint identify what particular policy, practice, or

District custom is actually at issue in the case. Plaintiff@s*allegations*are*nothing*more*than*bare*

legal*conclusions*that*are*+not*entitled*to*be*assumed*true.9**See Iqbal , 129 S. Ct. at 1951 (citing

Twombly, 127 S. Ct. at 1964-65). Moreover, absent*any*+well-pleaded*factual*allegations,9*the*

Complaint*lacks*+facial*plausibility,9*as*the*Court cannot reasonably infer from the Complaint

that the District maintained any practice, policy, or custom, let alone one proscribed by the Equal

Protection Claus. See id. at 1951 and 1949. Even when read in the broadest light, Plaintiff@s*

Complaint contains*nothing*more*than*the*+unadorned,*the-defendant-unlawfully-harmed-me

16
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 17 of 30

accusation]s^.9 Iqbal, 129 S. Ct. at 1949.

Even if Plaintiff had sufficiently pleaded an equal protection violation, she is nonetheless

unable*to*state*a*claim*for*municipal*liability*under*Section*1983.**+Proof*of*a*single*incident*of*

unconstitutional activity is insufficient to impose liability [under Section 1983] unless there was

proof that there was a policy*in*place*that*was*unconstitutional.9** Ekwem, 666 F. Supp.2d at 79

(quoting Sanders v. District of Columbia , 522 F. Supp.2d 83, 88 (D.D.C. 2007)(citing Monell ,

436*U.S.*at*694)).**A*+policy9*for*the*purposes*of*Section*1983*requires*more*than*an*isolated,

one-time harm. Here, Plaintiff has alleged no facts to support her claim that female students

other than she purportedly suffered gender discrimination as a result of any police practice or

custom. Instead, Plaintiff only pleads facts in support of the sexual abuse that she purportedly

suffered. See e.g., Am. Complaint at Count V. This pleading deficiency also warrants dismissal

of*Plaintiff@s*claim.** Cf. Sanders v. District of Columbia , 522 F. Supp.2d 83, 88 (D.D.C. 2007)

(dismissing Section 1983 claim where plaintiff failed to point to any other person who suffered

similar constitutional harm).

Further, Plaintiff@s*bare*allegation*that*+upon infor mation and belief, [the District

Defendants] have responded inappropriately to allegations of abuse in*other*situations9*+stops*

short*of*the*line*between*possibility*and*plausibility9*necessary*to*entitle*her*to*relief.**See Iqbal,

129*S.*Ct.*at*1949.**For*this*reason*and*those*stated*above*Plaintiff@s*equal*protection*claim*

against the District Defendants should be dismissed.

V I. T he Court L acks Jurisdiction to Decide 3>aintiff’s E qual Protection C laim

This*Court*has*no*`urisdiction*to*hear*Plaintiff@s*equal*protection*claim*to*the*extent*that*

she challenges the her placement at the Transition Academy at Shadd as well as the sufficiency

of the educational services that she purportedly received while enrolled at Shadd. See, e.g., Am.

17
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 18 of 30

Complaint at ¶¶ 41-45g*78g*82.**As*further*explained*below,*this*aspect*of*Plaintiff@s*equal*

protection claim must be dismissed because she failed to exhaust their administrative remedies

under the Individuals with*Disabilities*fducation*Act*(the*+HDfA9).

The IDEA was enacted to ensure that all children with disabilities have available to them

a free appropriate public education*(+FAPf9).**See 20 U.S.C. §1400(d)(1)(A), et seq. To provide

a student with FAPE, a state agency must conduct an initial evaluation of the student, see 20

U.S.C.*c1414(a)(1)(A)),*and*develop*an*individualiied*education*program*(+HfP9)*if*the*student*

is determined to have a disability. See 20 U.S.C. § 1414(c). If a parent has a complaint

concerning the identification, evaluation, or educational placement of a child, and whether that

child has received a FAPE, the parent is entitled to an administrative due process hearing,

pursuant to 20 U.S.C. §1415(f). The IDEA also provides for judicial review in state or federal

court*for*+]a^ny*party*aggrieved*by*the*findings*and*decision9*rendered*in*a*due*process*hearing.

20 U.S.C. §1415(i)(2)(A).

The administrative*procedures*set*forth*under*the*HDfA*are*not*Tan*optional*stop*on*the*

way*to*the*court@.9** Alston v. District of Columbia, Civil Action Number 07-682, Mem. Op. at 8

(D.D.C. March 30, 2010) (citing Andersen ex rel. Andersen v. District of Columbia , 877 F.2d

1018, 1025 (D.C. Cir. 1989)). +Rather,*the*philosophy*underpinning*the*HDfA*requires*a*

plaintiff*to*exhaust*administrative*remedies*before*turning*to*the*courts.9** Alston Mem. Op. at 8,

citing Cox v. Jenkins, 878 F.2d 414, 418 (D.C.Cir. 1989). Thus, +a*plaintiff@s*failure*to*exhaust*

administrative*remedies*deprives*the*court*of*authority*to*hear*the*suit9*and*the*applicable*claim*

must be dismissed. See Alston Mem. Op. at 9 (citing 20 U.S.C. § 1451(i)); Massey v. District of

Columbia, 400 F. Supp.2d 66, 70 (D.D.C. 2005).1 This administrative exhaustion requirement is

1
Because exhaustion of administrative remedies under the IDEA is jurisdictional, it is Plaintiffs@*burden*as*the*party*
claiming subject matter jurisdiction to show exhaustion of administrative remedies. See Georgiades v. Martin-

18
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 19 of 30

applicable even when the plaintiff did not file their civil action pursuant to the IDEA:

Although*the*HDfA*does*not*restrict*a*plaintiff@s*ability*to*pursue*remedies*available*
under the ADA and the Rehabilitation Act, it does require plaintiffs to exhaust their
administrative*remedies*before*bringing*claims*under*those*statutes*if*the*relief*sought*+is*
also*available*under*]the*HDfA^.9**20*U.S.C.*c1415(l)g*see also Douglass, 605 F.Supp.2d
at*166*(observing*that*the*+primary*concern*in*determining*whether*a*plaintiff*must*
utiliie*the*HDfA@s*administrative*procedures*relates*to*the*source*and*nature*of*the*
alleged*in`uries*for*which*he*or*she*seeks*a*remedy,*not*the*specific*remedy*itself9*
(quoting Padilla ex rel. Padilla v. Sch. Distr. No. 1, 233 F.3d 1268, 1274 (10th Cir.
2000))).

Alston Mem. Op. at 10-11 (dismissing ADA and Rehabilitation Act claims for failure to exhaust

under the IDEA, as Plaintiff@s*allegations*regarding*the*denial*of certain DCPS programs and

services*were*+educational*and*nature9*and*any*such*in`uries*could*be*redressed*by*the*HDfA*

administrative process); see also Polera v. Board of Education of Newburgh Enlarged City

School Dist., 288 F.3d 478 (2d Cir. 2002) (holding same).

Hn*the*present*case,*Plaintiff*alleges*that*Shadd*is*a*+failure9*and*+disaster9*that*

+bespeaks*a*lack*of*planning.9**See Am. Complaint at ¶¶ 41-42. She alleges that the school has

uncertified teachers, inadequate classroom staffing, insufficient textbooks, no school nurse, and a

lack of psychological services. See id. at ¶¶ 43, 45. Plaintiff further claims that the District

Defendants*have*violated*her*rights*to*the*extent*they*placed*her*at*Shadd,*+which*suffers*from*

inadequate staffing and supervision,9*while*other*special*education*students*remained*at*other*

schools. See id. at ¶ 82. Plaintiff also contends that the District mishandled special education

students, as demonstrated by the failures at Shadd. See id. at¶ 78.**Plaintiff@s*claim are

+educational*in*nature9*under* Alston, as she challenges her placement at Shadd, as well as

whether the District Defendants have provided her sufficient services as a special education

Trigona, 729*F.2d*831,*833*n.4*(D.C.Cir.*1984)(stating*that*+]i^t*is*the*burden*of*the*party*claiming*sub`ect*matter*
`urisdiction*to*demonstrate*that*it*exists9)g*see also McBride v. CITG O Petroleum Corp., 281 F.3d 1099, 1106 (10th
Cir. 2002) (observing*that*+because*failure*to*exhaust*administrative*remedies*is*a*bar*to*sub`ect*matter*`urisdiction,*
the burden is on the plaintiff as the party seeking federal jurisdiction to show, by competent evidence, that she did
exhaust9).

19
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 20 of 30

student necessary to ensure that she receives an free and adequate public education. Relief from

such*harm*is*plainly*provided*for*under*the*HDfA*and*could*be*redressed*by*the*HDfA@s*

administrative remedies and procedures. See 20 U.S.C. § 1415, et seq. Plaintiff failed to exhaust

her administrative remedies under the IDEA, however, and therefore, this component of her

equal protection claim must be dismissed. See Alston Mem. Op. at 10-12. The mere fact that

Plaintiff seeks money damages does not change the outcome. See id.

Hn*any*event,*Plaintiff@s*placement*at a specific school is not a liberty interest protected

by the Constitution. If that were so, every student or parent that disliked their school assignment

would*pursue*relief*in*federal*court.**Plaintiff@s*equal*protection*allegations*state*no*claim.

V I I. Plaintiff L acks Standing to Pursue an E qual Protection C laim Based O n

Generalized G rievances

Plaintiff has no standing to pursue an Equal Protection claim to the extent that she alleges

generalized complaints about the conditions of Shadd experienced by its students as a whole.

See, e.g., Am. Complaint at ¶¶ 41-46 and 78. To satisfy the standing requirement of Article III,

Plaintiff must show: (1) concrete, personal injuries to herself, (2) which must be fairly traceable

to the District Defendants@*conduct, and (3) the in`ury*must*be*+likely9*to*be*redressed*if*the*

relief sought is granted. Diamond v. Charles,*476*U.S.*54,*70*(1986).**+Generaliied*grievances9*

about the failures of the government are insufficient to infer standing on Plaintiff as a matter of

law:

[A]n injury amounting only to the alleged violation of a right to have the
Government act in accordance with the law [is] not judicially cognizable because
assertion of a right to a particular kind of Government conduct, which the
Government has violated by acting differently, cannot alone satisfy the
requirements of Art. III without draining those requirements of meaning.

Allen v. Wright, 468 U.S. 737, 753–755 (1983); See also Warth v. Seldin, 422 U.S. 490, 499

(1975)*(+when*the*asserted*harm*is a*Tgeneraliied*grievance@*shared*in*substantially*equal*

20
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 21 of 30

measure by all or a large class of citizens, that harm alone normally does not warrant exercise of

`urisdiction.9)g*Schlesinger v. Reservists to Stop the War , 418 U.S. 208, 217 (1974); Spann v.

Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990).

The above authorities are dispositive. In support of her Equal Protection claim, Plaintiff

alleges that Shadd is mismanaged and has insufficient staff and books, uncertified teachers,

insufficient psychological services, and no school nurse. Id. at ¶43-45. Plaintiff also contends

there is a lack of control in the classroom, outbreaks of violence among the students, and fighting

in the hallways. Id. at ¶45. By alleging that Shadd has failed its students as a whole, Plaintiff

has alleged nothing*more*than*a*+violation of a right to have the [District] to act in accordance

with the law.9**Allen, 468 U.S. at 753–755. Plaintiff cannot whip generalized grievances about

Shadd into a policy, pattern or practice for the purposes of Section 1983.

V I I I. Plaintiff F ails to State a C laim Pursuant to 20 U.S. C . § 1681.

Plaintiff@s*allegations*under*Title*Hk*are*insufficient*as*a*matter*of*law.**Plaintiff*alleges*

that the District Defendants had actual knowledge of the sexual relation between Weismiller and

Plaintiff because of a pregnancy test that Plaintiff took in December 2008 that came back

negative. Am. Complaint at ¶¶ 87, 34. Plaintiff also contends that the District Defendants had

actual knowledge of the through interviews of teachers and staff who saw Weismiller an Plaintiff

alone together. See id.*at*e*87**Plaintiff@s*allegations*state*no*claim.**

Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of

sex in federally funded educational programs and activities. See Education Amendments of

1972, Pub. L. No. 92-318, §§ 901-907, 86 Stat. 235, 373-75 (codified as amended at 20 U.S.C.

§§ 1681-1688) ("Title IX"). College Sports Council v. Dep't of Educ., 465 F.3d 20, 22 (D.C. Cir.

2006). In Gebser v. Lago Vista Independent School District, 524 U.S. 274, 285 (1998), the

21
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 22 of 30

Supreme Court held that that*it*would*+frustrate*the*purposes9*of*Title*Hk*to*permit*a*damages*

recovery against a school district for a teacher@s sexual harassment of a student based on

principles of respondeat superior or constructive notice, i .e., without actual notice to a school

district*official.9**The*Court*explained*the*rationale*for*its*holding*as*follows:

Title IX contains important clues that Congress did not intend to allow recovery
in damages where liability rests solely on principles of vicarious liability or
constructive notice . . . .

Because the express remedial scheme under Title IX is predicated upon notice to
an*+appropriate*person9*and*an*opportunity to rectify any violation, 20 U.S.C. §
1682, we conclude, in the absence of further direction from Congress, that the
implied damages remedy should be fashioned along the same lines. An
+appropriate*person9*under*§ 1682 is, at a minimum, an official of the recipient
entity with authority to take corrective action to end the discrimination.
Consequently, in cases like this one that do not involve official policy of the
recipient entity, we hold that a damages remedy will not lie under Title IX unless
an official who at a minimum has authority to address the alleged discrimination
and to institute corrective measures on the recipient's behalf has actual
knowledge of discrimination in the recipient's programs and fails adequately to
respond.

Id. at 288 and 290.

Plaintiff failed to sufficiently plead actual notice. A negative pregnancy test is

insufficient as a matter of law to alert a DCPS official that Plaintiff may have engaged in sex

with*a*teacher,*to*the*exclusion*of*all*others.**Moreover,*Plaintiff@s*Complaint*contains*no*

allegation*that*a*DCPS*official*who*+at*a*minimum*ha]d^ authority to address the alleged

discrimination and to institute corrective measures with*requisite*authority*to*act9*see id.,

actually knew about the negative test or the sexual encounters with Weismiller. Although

Plaintiff acknowledges that DCPS initiated an investigation in May 2009 after purportedly

learning*that*Plaintiff*was*pregnant,*Plaintiff@s*complaint*contains*identifies*no*DCPS*official*

who had actual knowledge of the sexual encounters before that time but failed to respond, nor

does Plaintiff allege that the sexual encounters continued after DCPS initiated its investigation.

22
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 23 of 30

Rather than plead the requisite notice, Plaintiff contends that an educational aide, a classroom

aide, two teachers, and a clinical psychologist often saw Plaintiff in Weismillier@s*room*often,*

and*a*teacher*apparently*heard*rumors*of*the*sexual*relationship.**Plaintiff@s*allegations*are*

insufficient as a matter of law. Plaintiff cannot establish Title IX liability under the principles of

respondeat superior or constructive notice by imputing the purported knowledge of certain low

level District employees the pertinent DCPS official. Plaintiff can state no claim under Title IX.

I X. &he ,ourt .acKs Lurisdiction -Mer 3>aintiffs’ ,ommon .aw ,>aims Against the
District As Plaintiff F ailed to Comply with D. C. Code § 12-309

Plaintiff@s*common*law*claims*against the District should be dismissed for failure to

provide proper notice of her claims. +An action may not be maintained against the District of

Columbia for unliquidated damages to person or property unless, within six months after the

injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to

the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances

of the injury or damage.9 See D.C. Code § 12-309. Compliance with Section 12-309 is a

mandatory prerequisite to filing suit against the District. District of Columbia v. Dunsmore, 662

A.2d 1356, 1359 (D.C. 1995); Kelton v. District of Columbia , 413 A.2d 191, 921 (D.C. 1980).

+Unless*]a*plaintiff^*demonstrates*compliance*with*the*requirements*of*c*12-309, [the] suit

against*the*District*is*properly*dismissed*because*Tno*Tright*of*action@*or*Tentitlement*to*maintain*

an*action@*accrues.@9** District of Columbia v. Arnold & Porter , 756 A.2d 427, 436 (D.C. 2000)

(quoting Campbell v. District of Columbia , 568 A.2d 1076, 1078 (D.C. 1990)); Gwinn v. District

of Columbia, 434 A.2d 1376, 1378 (D.C. 1981).

The D.C. Court of Appeals has long-recogniied*that*+because it is in derogation of the

common law principle of sovereign immunity, Section 12-309 is to be construed narrowly

against*claimants.9** Gross v. District of Columbia , 734 A.2d 1077, 1081 (D.C. 1999); see also

23
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 24 of 30

Doe by F ein v. District of Columbia , 697 A.2d 23, 29 (D.C. 1997); District of Columbia v.

Dunmore, 662 A.2d 1356, 1359 (1995). Under the statute, the six-month clock begins to run

from the moment the plaintiff sustains the injury, not from the moment a cause of action

accrues.9 District of Columbia v. Dunmore, 662 A.2d 1356, 1359 (D.C. 1995); DeKine v.

District of Columbia, 422 A.2d 981, 985 (D.C.1980). The*term*+in`ury9*for*the*purposes*of*

Section 12-309*does*not*mean*+actionable*in`ury,9*and*therefore, the discovery rule does not

apply to Section 12-309. Id. at 1360. Indeed, the point in time when a cause of action accrues is

+immaterial9*for*purposes*of*triggering*the*statutory*notice*requirement.** Dunmore, 662 A.2d at

1359. Moreover, +any doubt as to the proper timing for the giving of the notice should be

resolved*in*favor*of*earlier*notice.9** District of Columbia v. Ross, 697 A.2d 14, 19 (D.C. 1997).

Plaintiff provided no proper notice as a matter of law. Plaintiff alleges that she complied

with Section 12-309 on two grounds. First, Plaintiff alleges that a DCPS investigative report

dated August 21, 2009 meets the notice requirements of the statute. Second, Plaintiff she alleges

that she gave the District notice of her claims via a May 13, 2010 letter. Both arguments fail.

The only substitute for actual §12-309 notice to the Mayor or his designee is a MPD

police report that otherwise meets the mandatory requirements of the statute. See D.C. Code 12-

309*(+A*report*in*writing*by*the*Metropolitan Police Department, in regular course of duty, is a

sufficient notice*under*this*section.9)**The DCPS investigative report that Plaintiff references in

the Amended Complaint does not meet this narrow exception.

Further,*Plaintiff@s*May 13, 2010 letter is untimely. As noted above, Plaintiff alleges that

a former teacher initiated a sexual relationship with her on or about November 19, 2008 when

they had sexual intercourse in a car. Plaintiff should have provided the District notice of her

common law claims within six months of the alleged injury, i .e., the first instance of sexual

24
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 25 of 30

abuse. See Dunmore, 662 A.2d 1356, 1359 (D.C. 1995). Instead, Plaintiff delayed in providing

the District notice until May 13, 2010. Plaintiff@s*notice*is*late and her common law claims must

be dismissed. See Giardino v. District of Columbia, 252 F.R.D. 18, 24 (D.D.C. 2008)

(dismissing claim for failure to comply with Section 12-309).

X. 3>aintiff’s Negligent Supervision C laim F ails For L ack of an A ntecedent act of

Negligence

Plaintiff failed to sufficiently plead negligent supervision (Claim I). The D.C. Court of

Appeals*has*noted*the*+considerable*authority*for*the*principle*that*negligent*supervision,*while*an*

independent tort directed to the conduct of the employer, requires logically antecedent proof of a

tort*committed*by*the*supervised*employee.9** Daka v. McCrae, 839 A.2d 682, 693 & n.12 (D.C.

2003) (citing Grego v. Meijer, Inc.,*187*F.*Supp.*2d*689,*694*(W.D.*Ky.*2001)*(+the*tort*of*

negligent supervision is a second tort that derives from a tort committed by the person negligently

supervised9)); see also Schulze v. Meritor Auto., 163 F. Supp. 2d 599, 616 (W.D. N.C. 2000)

(granting*summary*`udgment*on*negligent*supervision*claim*where*+there*simply*]was^*no*evidence

that*the*acts*of*]the*employees^*were*violative*of*state*or*federal*law9),*and*Schoff v. Combined Ins.

Co. of America,*604*N.W.2d*43,*53*(Howa*1999)*(+an*employer*cannot*be*held*liable*for*negligent*

supervision or training where the conduct that proper supervision or training would have avoided is

not*actionable*against*the*employee9).

To sufficiently plead negligent supervision, Plaintiff must plead an antecedent act of

negligence*by*Weismiller.**Plaintiff@s*Amended*Complaint*contains*no*such*allegation, and

therefore, the claim fails.

X I. 3>aintiff’s $eg>igent H iring /Retention C laim F ails For L ack of an A ntecedent A ct of

Negligence

25
 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 26 of 30

The*District*Defendants*incorporate*by*reference*their*legal*arguments*regarding*Plaintiff@s*

claim for negligent supervision. Plaintiff@s*claim*for*negligent*hiring/retention (Claim II) fails

for the same reason as her negligent supervision claim. Plaintiff failed to plead antecedent

negligence. Accordingly, Claim II should be dismissed.

X I I. Plaintiff F ails to State a C laim for Intention Infliction of E motional Distress

Plaintiff@s*intentional*infliction*of*emotional*distress*claim*does*not*state*a*plausible*

claim for relief. To establish a prima facie case of intentional infliction of emotional distress, a

plaintiff must show (1) extreme and outrageous conduct on the part of the defendant, which (2)

either*intentionally*or*recklessly*(3)*caused*severe*emotional*distress.9* Larijani v. Georgetown

Univ., 791*A.2d*41,*44*(D.C.*2002)*(citations*omitted).**+Liability*will*not*be*imposed for mere

insults,*indignities,*threats,*annoyances,*petty*oppressions,*or*other*trivialities.9* Homan v. Goyal,

711 A.2d 812, 818 (D.C. 1998) (internal quotations and citations omitted) (amended by 720 A.2d

1152 (D.C. 1998)). Rather, the offending conduct must be so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized society. See id.

Plaintiff@s allegations sufficiently allege no outrageous conduct. For the reasons stated

above, Plaintiff cannot establish as a matter of constitutional nor common law that the pertinent

District Defendants were aware of the sexual intercourse between she and Weismiller, or acted

recklessly in failing to stop the conduct. Moreover, the District Defendants have no involvement

nor control over Plaintiff@s*home life. Plaintiff, for example, is not in foster care, nor is she a

ward*in*the*District@s*custody.**Rather,*paragraph*17*of*the Amended Complaint specifies that all

relevant times Plaintiff resided with her mother. Therefore, to the extent that Plaintiff alleges

that*she*+has*been*forced*out*of*her*former*residence*and*into*a*transitional*living*facility,*and*

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 27 of 30

she*now*fears*homeless,9*see Am. Complaint at ¶ 63, neither*these*chain*of*events*nor*Plaintiff@s*

emotional reaction thereto are attributable to the District Defendants. Absent any outrageous

conduct by the District Defendants, Plaintiff can state no claim.

Further, the District Defendants are not liable for the alleged torts of Weismiller on an

agency theory since sexual relationship with students is not within the scope of his employment.

The District Defendants may be sued for the torts of its agents only if there exists a respondeat

superior relationship between the employee and the District. Bostic v. District of Columbia, 906

A.2d 327, 331 (D.C. 2006) (citing Wade v. District of Columbia , 310 A.2d 857, 863 (D.C.

1973)). To establish the necessary agency*relationship,*Plaintiff*+must show that a master-

servant relationship existed between [the alleged tortfeasor] and the District, and that the incident

at issue occurred while [the tortfeasor] was acting within*the*scope*of*his*employment.9

Moorehead v. District of Columbia , 747 A.2d 138, 142 (D.C. 2000) (quoting Giles v. Shell Oil

Corp., 487 A.2d 610, 611 (D.C. 1985)). To determine whether a master-servant relationship

exists, courts consider the following factors: (1) the selection and engagement of the servant, (2)

the payment of wages, (3) the power to discharge, (4) the power to control the servant's conduct,

(5) and whether the work is part of the regular business of the employer. Id. at 143 (citing

District of Columbia v. Hampton, 666 A.2d 30, 38 (D.C. 1995)).

No master servant relationship existed between the District Defendants and Weismiller as

matter of law. Weismiller@s*employment*required*him*to*teach.**Sexual intercourse with a

special education student is outside the scope of his employment. Claim III must fail.

X I I I. Plaintiff’s c>aim for 1reach of #iduciary !uty fai>s as a M atter of L aw

Plaintiff has no actionable claim for breach of fiduciary duty. Plaintiff alleges that

District Defendants owed her a fiduciary duty based on her special education needs. Am.

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 28 of 30

Complaint at ¶ 68. She alleges that hiring and failing to supervise Weismiller breached that duty.

Id. at ¶¶ 69-70. Arguably, no D.C. Court of Appeals decision*supports*Plaintiff@s*theory*of*

liability. In fact, the Court of Appeals has only recognized a fiduciary duty in a context that does

not apply here, the mismanagement of student funds. See Cahn v. Antioch University, 482 A.2d

120, 131 (D.C. 1984). Claim IV should be dismissed.

C O N C L USI O N

For all the foregoing reasons, Defendants, the District of Columbia Public Schools and

Chancellor,*Michelle*Rhee,*respectfully*request*that*this*Court*dismiss*Plaintiff@s*complaint in

its entirety with prejudice.

Respectfully submitted,

PETER J. NICKLES
Attorney General for the District of Columbia

GEORGE C. VALENTINE
Deputy Attorney General, Civil Litigation Division

/s/Erica Taylor McKinley

ERICA TAYLOR MCKINLEY [467884]
Chief, Section II
Civil Litigation Division

/s/ Denise J. Baker

DENISE J. BAKER [493414]
Assistant Attorney General
441 Fourth Street, N.W., 6th Floor
Washington, D.C. 20001
(202) 724-6644 (telephone)
(202) 741-8800 (fax)
E-mail: Denise.baker@dc.gov

Counsel for the Defendants

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 29 of 30

U N I T E D ST A T ES D IST R I C T C O U R T
F O R T H E D IST R I C T O F C O L U M B I A

____________________________________
)
AYANNA BLUE, )
)
Plaintiff, )
) Case Number: 10-1504 (RWR)
v. )
)
DISTRICT OF COLUMBIA PUBLIC )
SCHOOLS, etal., )
)
Defendants. )
____________________________________)

ORDER
Upon consideration of the District Defendants@*Motion*to*Dismiss*Plaintiff@s*Complaint,*

the memorandum of points and authorities filed in support thereof, any opposition thereto, and

the entire record herein, it is by the Court this day of __________________, 2010:

ORDfRfD,*that*the*Defendants@*motion*shall*be*and*the*same*is*hereby*grantedg*and*it*

is further

ORDERED, that judgment against Plaintiff and in favor of the District Defendants is

granted as a matter of law.

____________________________
RICHARD W. ROBERTS
UNITED STATES DISTRICT JUDGE

cc:

Denise J. Baker
Assistant Attorney General
441 Fourth Street, N.W., Suite 6S079
Washington, D.C. 20001

Scott D. Gilbert
Natalie A. Baughman

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 Case 1:10-cv-01504-JEB Document 11 Filed 10/29/10 Page 30 of 30

Andrea K. Hipkins
Brian Weinthal
Stephen A. Weisbrod
GILBERT LLP
1100 New York Avenue, NW, Suite 700
Washington D.C. 20005

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