Monday, August 8, 2022

Suit Survives

A civil action filed by an attorney who had an employment offer revoked has survived in part in a Memorandum Opinion  of the United States District Court for the District of Columbia

Plaintiff Terri Lea had an offer for a General Counsel position in the D.C. government — until she didn’t. Two weeks after extending her that offer, the District revoked it based on a finding that Lea was not “suitable” for the position. Since then, she has applied for other legal jobs in the D.C. government but to no avail. She submits that the unsuitability determination, which is memorialized in her personnel file, is a scarlet letter that has and will continue to bar her from finding government employment. She has thus brought this suit against the District and individual government employees involved in her hiring process, alleging that they violated her constitutional right to due process by tarnishing her reputation without a proper hearing, and that they are liable for negligent misrepresentation in connection with her offer letter. Defendants now move to dismiss. As one of Plaintiff’s constitutional theories is infirm, the Court will grant the Motion in part, but permit the remainder of her suit to move forward.

The revocation of the offer was based on a disciplinary suspension with fitness.

She was reinstated in 2017.

The court found the lawsuit had been timely filed

That threshold question answered, the Court now moves to the more complicated issue of the merits of Lea’s federal causes of action. The factual basis for her § 1983 claims is easy to grasp: she submits that the District’s failure to hire her, coupled with its assessment that she was not “suitable” for the General Counsel role, besmirched her name and thus prevented her from securing any employment in the D.C. government. See Am. Compl., ¶¶ 51–67. The legal validity of her position that the District, in so doing, violated a constitutionally protected liberty interest is less straightforward. A review of the legal standards underpinning those causes of action is a good place to start.

She was not an employee

The Court thus concludes that because Lea has not alleged a discharge or at least a demotion in rank or pay, she has failed to state a due-process claim based on the reputation-plus theory. The Court will dismiss Counts I and II to the extent that they rely on that theory.

But not dealt out

Lea still has cards to play, as she also asserts a claim under the stigma-plus theory. Seeking dismissal of this basis for Counts I and II as well, Defendants point to two alleged deficiencies.


Defendants’ first objection thus falls flat. It is enough, at least for purposes of the stigma plus claim, that Lea alleged a “certain adverse [government] action” — the refusal to hire her due to her unsuitability — that imposed a stigma on her. Campbell v. District of Columbia, 894 F.3d 281, 288 (D.C. Cir. 2018).

Second, Defendants suggest that because Lea faced nothing more than “difficulty in obtaining a job in a particular field,” she has failed to satisfy the second requirement of a stigma plus claim. See Def. MTD at 14. Defendants have the law correct: a stigma-plus claim cannot survive a motion to dismiss on the theory that a government action led to mere difficulty finding a job. The Complaint must allege that the plaintiff has been effectively “foreclosed” from some category of work. Campbell, 894 F.3d at 288–89.

This it sufficiently does, albeit in a rather conclusory fashion.

Negligent misrepresentation

Finally, Defendants contend that “Plaintiff appears to believe that her conditional job offer was irrevocable,” and that “[a]s a lawyer, Plaintiff of all people, should have known that ‘conditional’” meant the opposite of irrevocable. See MTD at 16–17. That argument talks right past Lea’s claim. She plainly concedes that her offer was revocable, but she also asserts that Defendants, by including certain contingencies in her offer letter but not others, led her to believe — mistakenly, it turned out — that her offer was revocable on more limited grounds than was ultimately the case. See Am. Compl., ¶ 73. A complete account of the grounds for revocation, and not the revocability itself, she submits, was the key omission.

As Defendants’ contentions largely leave Plaintiff’s negligent-misrepresentation claim untouched, the Court will deny the Motion as to Count III.

District Judge Boasberg has the matter. (Mike Frisch)

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