1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EVAN EVANGELOU : : Plaintiff, : Civil Action No.: 11-531 (RC) : v. : : DISTRICT OF COLUMBIA, et al. : : Defendants. :

MEMORANDUM OPINION Evan Evangelou brought this suit against the Di strict of Columbia and its chief of police, alleging that his constitutional ri ghts were violated when he was fired by the Metropolitan Police Department. The defendants have moved to dism iss the complaint for failure to state a claim upon which relief can be granted. Their motion will be mostly denied. I. BACKGROUND In his complaint, Evan Evangelou alleges thathe was hired by the Di strict of Columbia’s Metropolitan Police Department (“ MPD” or “police department”) to be a police officer in September 2008. Am. Compl. ¶ 5. For the fi rst eighteen months, his employment was probationary. Id. During that probationary period, another officer accused Mr. Evangelou of extortion. Id. ¶ 6. 1 Mr. Evangelou had his police power suspended, his badge and pistol confiscated, and he was assigned to mind a desk at the Police Boys and Girls Club. Id. ¶ 7. After the accusation, Mr. Evangelou was c ontacted by a detective from the internal affairs division of the police department. Id. ¶ 8. The detective said that he was conducting a criminal investigation into the allegations against Mr. Ev angelou, and that anything Mr.

1 Mr. Evangelou maintains that this accusation was false. Am. Compl. ¶ 6.2 Evangelou said could be used against him in a criminal proceeding. Id. Relying on his constitutional right against sel f-incrimination, Mr. Evangelou refused to answer the detective’s questions. Id. His lawyer then contacted the detec tive to confirm that Mr. Evangelou was invoking his Fifth Amendment rights and w ould not agree to be interviewed. Id. ¶ 9. Mr. Evangelou heard nothing more about the criminal investigation. Id. In March 2010, two weeks before the end of Mr. Evangelou’s probationary period, he received a letter from Cathy Lanier, the chief of police at the MPD. Id. ¶ 11. The letter from Chief Lanier terminated Mr. Evangelou’s empl oyment without explana tion, effective several days later. Id. Mr. Evangelou alleges that Chief Lanier decided to fire him because he asserted his constitutional right against self-incrimination, refusing to answer questions about the allegations of extortion unless he was assured that any information he provided would not be used to prosecute him. Id. ¶ 13. After giving notice to the Mayor of the District of Columbia, id. ¶ 14, Mr. Evangelou filed this suit against the District and Chief Lanier, in both her offici al and her individual capacities. He claims that the defendants are liable under 42 U.S.C. § 1983 for violating his Fifth Amendment right against self-incrimination, id. ¶¶ 15–22, as well as his right to due process of law before being permanently defame d or stigmatized as unsuitable for employment, id. ¶¶ 23–29. Mr. Evangelou also alleges that the defendants violated D.C. Code § 5-105.04 by failing to give him advance written notifica tion of the reasons for his termination. Id. ¶¶ 30–36. The defendants have moved to dismiss the entire complaint for failure to state a claim on which relief can be granted.3 II. LEGAL STANDARD A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). Such motions allege that a plaintiff has not properly stated a claim; they do not test a plaintiff’s ultimate likelihood of success on the merits. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974). The complaint is only required to set forth a short and plain statement of the claim, in order to give the defendant fair notice of the clai m and the grounds upon which it rests. Kingman Park Civic Ass’n v. Williams , 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing F ED
. R. C IV
. P. 8(a)(2) and Conley v. Gibson , 355 U.S. 41, 47 (1957)). A court considering this type of motion presumes the factual allegations of the complaint to be true and construes them lib erally in the plaintiff's favor. See, e.g. , United States v. Philip Morris, Inc. , 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It is not necessary for the plaintiff to plead all elements of his prim a facie case in the complaint, Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 511–14 (2002), or to plead law or match facts to every elemen t of a legal theory, Krieger v. Fadely , 211 F.3d 134, 136 (D.C. Cir. 2000) (internal citations omitted). Nonetheless, “[t]o survive a motion to dismiss, a complaint mu st contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly , 550 U.S. 544, 562 (2007). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendan t is liable for the misconduct alleged.” Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 556). “The plausibility st andard is not akin to a ‘probability requirement,’ but it asks for more than a sheer po ssibility that a defendant has acted unlawfully.” Id. (citing Twombly , 550 U.S. at 556).4 The court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia , 353 F.3d 36, 39 (D.C. Cir. 2004); Browning , 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action, supported by mere concluso ry statements, do not suffice.” Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 555). III. ANALYSIS Section 1983 provides a cause of action against [e]very person who, under color of any stat ute, ordinance, regulation, custom, or usage, of any State or Territory or the Di strict of Columbia, subjects, or causes to be subjected, any citizen of the Un ited States or othe r person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. 42 U.S.C. § 1983. A plaintiff bringing a § 1983 claim “must allege both (1) that he was deprived of a right secured by the Constitution or laws of the United States, and (2) that the defendant acted ‘under color of’ the law of a state, territory or the District of Columbia.” Hoai v. Vo , 935 F.2d 308, 312 (D.C. Cir. 1991)). As a municipal corporation, the District is a “person” within the meaning of the statute and is therefore subject to liability “whe n an official policy or custom causes [a] complainant to suffer a deprivation of constitutional” or other federal right. Carter v. District of Columbia , 795 F.2d 116, 122 (D.C. Cir. 1986); accord Warren , 353 F.3d at 38. Mr. Evangelou alleges that, in firing him, Ch ief Lanier and the Dist rict violated two of his constitutional rights: the ri ght against self-incrimination, see, e.g. , Gardner v. Broderick , 392 U.S. 273, 278–79 (1968), and the right to due proce ss of law before being permanently defamed as unsuitable for employment or stigmatized in a way that seriously affects one’s ability to pursue his chosen profession, see O’Donnell v. Barry , 148 F.3d 1126, 1139–41 (D.C. Cir. 1998). He requests both damages and injunctive relief. In his complaint, Mr. Evangelou also asserted a5 separate claim for the defendants’ alleged viol ation of D.C. Code § 5-105.04, but on this motion he has conceded that that claim should be dismissed, see Memo. in Opp. to Defs.’s Mot. to Dismiss at 5, and so it will be. The court proceeds to consider the defendants’ arguments that the claims for constitutional violations should also be dismissed. A. Self-Incrimination Mr. Evangelou first alleges that Chief Lanier and the District fired him for asserting his Fifth Amendment right against self-incrimination. See Am. Compl. ¶ 19. The defendants argue that Mr. Evangelou’s claim should be dismissed b ecause it fails to properly allege a violation of the constitutional right. The District goes on to argue that the complaint does not satisfy the Monell standard for municipal liability, and that the suit against Ch ief Lanier in her official capacity is redundant. Chief Lanier also maintains th at, in her individual ca pacity, she is entitled to qualified immunity. The court turns first to the adequacy of the constitutional violation alleged. i. Constitutional Violation “Like other individuals, government employees enjoy the protection of the privilege against self-incrimination. Yet the government, lik e private employers, need s to ensure that its employees are faithfully performing their duties. The government therefore may fire employees who refuse, on the basis of their Fifth Amendmen t privilege, to answer questions concerning the performance of their duties, so long as the employees’ answers could not be used against them in a criminal prosecution .” Nat’l Fed’n of Fed. Employees v. Greenberg , 983 F.2d 286, 291 (D.C. Cir. 1993) (emphasis added) (citing Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation , 392 U.S. 280, 284–85 (1968); Gardner , 392 U.S. at 278–79; Garrity v. New Jersey , 385 U.S. 493 (1967)); accord Chavez v. Martinez , 538 U.S. 760, 768 (2003) (Thomas, J.) (noting that6 “governments may penalize public employees and gove rnment contractors (with the loss of their jobs or government contracts) to induce them to respond to inquiries, so long as the answers elicited (and their fruits) are immunized from use in any cr iminal case again st the speaker ”) (emphasis added) (citing Lefkowitz v. Cunningham , 431 U.S. 801, 806 (1977); Lefkowitz v. Turley , 414 U.S. 70, 84–85 (1973)). Public employ ees and government contractors cannot, however, constitutionally be given the “Hobson’s choice between self-incrimination and forfeiting [their] means of livelihood.” Gardner , 392 U.S. at 277. “[T]he state must,” therefore, “decide whether to demand a statement from an employee [or contractor] on job-related matters, in which case it may not use the statement in a criminal prosecution.” United States v. Vangates , 287 F.3d 1315, 1321 (11th Cir. 2002). What th e government cannot do is both demand a potentially self-incriminating statement and reserv e the right to use that statement in a later criminal proceeding. See Atwell v. Lisle Park Dist. , 286 F.3d 987, 990 (7th Cir. 2002) (Posner, J.) (“The government is not allowed to force a pers on to make a statement, even out of court, that might be used as evidence that he had committed a crime.”); Gulden v. McCorkle , 680 F.2d 1070, 1074 (5th Cir. 1982) (observing that “it is the compelled answer in combination with the compelled waiver of immunity that crea tes the Hobson’s choice for the employee”). Several consequences flow from this limit on government power. First, if the government chooses to demand an answer from its employee, then that answer is immunized automatically. Aguilera v. Baca , 510 F.3d 1161, 1172 n.5 (9th Cir. 2007) (“If compelled, [to answer questions in the course of an internal affairs investig ation,] the [police] officers automatically would be entitled to immunity for any in criminating statements that they made.” (emphasis added) (citing Minnesota v. Murphy , 465 U.S. 420, 434 (1984)); accord Sher v. Dep’t of Veterans Affairs , 488 F.3d 489, 502 n.12 (1st Cir. 2007) ( noting the “considerable amounts of7 persuasive authority from other circuits on this issue”). Because of that automatic immunity, an employee can be fired on the basis of either her answer or her refusal to give an answer when required to do so, even if the an swer would be self-incriminating. United States v. Friedrick , 842 F.2d 382, 394–95 (D.C. Cir. 1988). But if the gove rnment does not demand an answer to its questions, then no automatic immunity protects the employee’s answers. See, e.g. , Aguilera , 510 F.3d at 1177 (Kozinski, C.J., dissenting on other gr ounds) (explaining that “if plaintiffs weren’t compelled to make self-incriminating statements, they didn’t automatically have immunity”). Because answers freely given are not immune from use in criminal proceedings, the governmentcannot punish its employee for refusing to provide such answers when they could be selfincriminating: “no ‘penalty’ may ever be im posed on someone who exercises his core Fifth Amendment right not to be a ‘witness’ against himself in a ‘criminal case.’” Chavez , 538 U.S. at 768–69 (Thomas, J.) (quoting Griffin v. California , 380 U.S. 609, 614 (1965)); id. at 768 n.2 (noting that “States cannot condition public employ ment on the waiver of constitutional rights” (citing Lefkowitz , 414 U.S. at 85)); accord Aguilera , 510 F.3d at 1172 n.5 (“If [the police officers being investigated were] not unde r compulsion [to answer questions], . . . then they had the constitutional right to remain sile nt without fear of punishment.”); id. at 1177 (Kozinski, C.J., dissenting on other grounds) (concluding that if the officers being investigated “had no immunity, they were constitutionall y entitled to remain silent”). Mr. Evangelou argues that he was not comp elled to make a statement regarding the extortion accusation. The defendants agree. 2 Moreover, that fact is clearly implied by the

2 Because the parties agree that no statemen t was compelled, they have not argued—and the court need not decide—whether questions about the allegations of exto rtion would have been “potentially incriminating questions concerning [Mr. Evangel ou’s] official duties ,” Lefkowitz , 538 U.S. at 768 (emphasis added), and, if not, whether the defendants could have compelled answers from Mr. Evangelou. (The question may turn on whether the extortion was alleged to8 allegations in the complaint. As reviewed above, the government may either demand a selfincriminating statement or withhold immunity for the use of the statement in a criminal proceeding—but not both. The complaint alleges that the internal affairs detective told Mr. Evangelou that anything he said could be us ed against him in a criminal prosecution. Am. Compl. ¶ 8. Because the detective withheld immu nity from Mr. Evangelou, it follows that he was not demanding answers to his questions, and therefore that the government could not punish Mr. Evangelou for refusing to provide poten tially self-incrimi nating information. Nat’l Fed’n of Fed. Employees , 983 F.2d at 291–92. Mr. Evangelou alleges that the District and Chief Lanier did just that, firing him for exerci sing his Fifth Amendment rights. The defendants make five unavailing argum ents that the claim should nonetheless be dismissed for failure to allege a constitutional violation. In their fi rst three arguments, the defendants note that Mr. Evange lou made no statement regarding the accusation of extortion, that he therefore was not compelled to make any such statement, and that no improperly compelled statement was used against him. But those facts do not defeat his claim, because the Fifth Amendment is violated when the federal government punishes an employee for refusing to provide potentially self -incriminating information that would be admissible in a criminal proceeding—as Mr. Evangelou alleges he was told that his statements would be. See Lefkowitz , 431 U.S. at 806. Fourth, the defend ants argue that Mr. Evangelou ha d no reason to think that his job would be placed in additional jeopardy if he answered the detective’s questions, since he was
have occurred in connection with Mr. Evangelou’s duties as a police officer, which is not clear from his complaint.) Even if the defendant s could have compelled answers about matters unrelated to official duties, however, they could not have co mpelled those answers without immunizing them, nor punished Mr. Evangelou for rema ining silent in the absence of immunity. See Hanover Township Fed’n of Teachers v. Hanover , 457 F.2d 456, 460 (7th Cir. 1972) (Stevens, J.) (Public employees ar e also “protected against disc harge in retaliation against the exercise of” their “right to claim the privileg e against self-incrimination when questioned about matters unrelated to the performance of [their] of ficial duties.”) (emphasis added).9 already a probationary employee. That the argument ignores the realities of the workplace—of course an at-will employee places his job in additional jeopardy when he confesses a crime to his employer—is beside the point. The right ag ainst self-incriminati on does not concern Mr. Evangelou’s job security—indeed, that right is not violated when a government employee is forced to make statements that lead to his firing. See Nat’l Fed’n of Fed. Employees , 983 F.2d at 291. What the right against self-incrimination prot ects is Mr. Evangelou’s dignity as a citizen. Miranda v. Arizona , 384 U.S. 436, 460 (1966) (“[T]he constitutional foundation underlying the privilege [against self-incrimination] is the re spect a government—state or federal—must accord to the dignity and integrity of its citizens.”); see also United States v. Mandujano , 425 U.S. 564, 590 (1976) (Brennan, J., concurring) (discussing “the fundamental re straints which guarantee our liberty, including the Fifth Amendment privilege against self-incrimination”). Finally, the defendants argue that because Mr. Evangelou wa s a probationary employee and therefore had no property right in his continued empl oyment, he could be fired for re fusing to incriminate himself. That is not the law. Here, as in many contexts , the government is barred from acting on the basis of an unconstitutional motive, even if it could have taken the same action for countless licit reasons—or for no reason at all. Cf. Bd. of Cty. Comm’rs v. Umbehr , 518 U.S. 668, 675 (1996) (noting that although “the First Amendment doe s not create property or tenure rights” it nonetheless “protects government employees from termination because of their speech on matters of public concern”); Wilburn v. Robinson , 480 F.3d 1140, 1149 (D.C. Cir. 2007) (setting out four-factor test for claims of unconstitutio nal retaliation against government employees for exercising their First Amendment ri ghts; property interest in empl oyment not among the factors).10 Although the defendants could have fired Mr. Evangelou for many reasons and, perhaps, without any kind of process, they could not fire hi m in violation of his constitutional rights. 3 ii. Municipal Liability The court turns to the District of Columb ia’s argument that Mr. Evangelou has not alleged facts sufficient to impose liability on the District or—what amounts to the same thing— on Chief Lanier in her official capacity. 4 It is axiomatic that “a municipality cannot be held liable solely because it employs a tortfeasor—or, in othe r words, a municipality cannot be liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Social Servs. , 436 U.S. 658, 690 (1978). “Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts ma y fairly be said to re present official policy,

3 The defendants raise two additional arguments fo r the first time in their reply brief: that the right against self-incrimination ca n only be invoked in the course of a “proceeding,” which the internal affairs investigation supposedly was not , and that Mr. Evangel ou could be fired for asserting his Fifth Amendment rights if he asse rted them improperly as “a general excuse for refusing to appear” and not “in conn ection with precise questions.” Landy v. United States , 283 F.2d 303, 304 (5th Cir. 1960) (per curiam). The court will not consider those arguments on this motion. See Am. Wildlands v. Kempthorne , 530 F.3d 991, 1001 (D.C. Cir. 2008); Jones v. Mukasey , 565 F. Supp. 2d 68, 81 (D.D.C. 2008) (both refusi ng to consider arguments first raised in a reply brief). However, Mr. Evangelou will ultimately bear the burden of proving that his Fifth Amendment rights were violated, and a pu blic employee being questioned about official duties “has no right to skip the interview merely because he has reason to think he’ll be asked questions the answers to whic h might be incriminating.” Atwell , 286 F.3d at 991.

4 “A suit against an individual in her official capacity is one method of bringing suit against the employer and is distinct from an individual capac ity suit. Where the suithas been filed against the employer (here the District of Columbia) and one or more employees [in their official capacities], however, the claims against the employees merge with the claim against the employer.” Cooke-Seals v. District of Columbia , 973 F. Supp. 184, 187 (D.D.C. 1997). “Based upon the understanding that it is duplicative to name both a governme nt entity and the entity’s employees in their official capacity, courts have routinely dismi ssed corresponding claims against individuals in their offi cial capacity as ‘redundant and an inefficient use of judicial resources.’” Robinson v. District of Columbia , 403 F. Supp. 2d 39, 49 (D.D.C. 2005) (quoting Cooke-Seals , 973 F. Supp. at 187; citing many cases). This court will therefore do the same, dismissing the claims against Chie f Lanier in her official capacity as identical to and therefore duplicative of the claims against the District itself.11 inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694. “The ‘official policy’ requirement was in tended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make cl ear that municipal li ability is limited to actions for which the municipali ty is actually responsible.” Pembaur v. City of Cincinnati , 475 U.S. 469, 479–80 (1986). To impose liability on a muni cipality, the plaintiff mustallege—and, ultimately, must prove—the existence of a municipal custom or pr actice that abridged his federal constitutional or statutory rights. See Daskalea v. District of Columbia , 227 F.3d 433, 441 (D.C. Cir. 2000). A plaintiff can satisfy this burden in any of fourways. First, a plaintiff can show that “the municipality or one of its polic ymakers explicitly adopted the po licy that was ‘the moving force of the constitutional [or othe r federal] violation.’” Warren , 353 F.3d at 39 (quoting Monell , 436 U.S. at 694). A plaintiff can also demonstr ate that “a policymaker ‘knowingly ignore[d] a practice that was consistent e nough to constitute custom.’” Jones v. Horne , 634 F.3d 588, 601 (D.C. Cir. 2011) (quoting Warren , 353 F.3d at 39). Next, a plai ntiff can establish that the municipality “failed to respond to a need . . . in such a manner as to show ‘deliberate indifference’ to the risk that not addressing the n eed will result in constitu tional [or other federal] violations.” Id. (quoting Baker v. District of Columbia , 326 F.3d 1302, 1306 (D.C. Cir. 2003)). Finally, a plaintiff can prove thatfederal law was violated by a direct act of the policymaker. See Bd. of Cnty. Com’rs v. Brown , 520 U.S. 397, 418 (1997) (reasoning that where a policymaker is the responsible party, “the choice of policy and it s implementation are one, and the first or only action will suffice to ground municipa l liability simply because it is the very policymaker who is acting” (citing Pembaur , 475 U.S. at 480–81)); Baker , 326 F.3d at 1306 (equating “ the action of12 a policy maker within the government” w ith official government policy (citing City of St. Louis v. Praprotnik , 485 U.S. 112, 123–30 (1988))). Mr. Evangelou alleges that “Chief Lanier de cided to terminate [him] as a result of his having asserted his Fifth Amendment right agains t self-incrimination.” Am. Compl. ¶ 13. He also alleges that Chief Lani er was a “final policy making official” for the District, id. ¶ 21, and therefore concludes that his cons titutional rights were violated pursuant to official District policy. The District makes several fruitless argume nts in response, most of which amount to the claim that Mr. Evangelou must allege that he was fired pursuant to some general policy or
custom. Not so: “ the action of a policy maker with in the government” is enough to establish a municipal policy. Baker , 326 F.3d at 1306. “It does not matter that the policymaker may have chosen ‘a course of action tailor ed [only] to a particular situ ation and not intended to control decisions in later situations’; if the decision to adopt that particular course of action is intentionally made by the authorized policymaker, ‘it surely represents an act of official government “policy”’ and ‘the municipality is eq ually responsible whether that action is to be taken only once or to be taken repeatedly.’” Bd. of Cnty. Com’rs , 520 U.S. at 418 (quoting Pembaur , 475 U.S. at 481) (alteration in original). No r does it matter, as the District also argues, that the detective who attempted to question Mr . Evangelou was not hims elf a policymaker. The alleged constitutional violation occurred when Ch ief Lanier fired Mr. Evangelou, not when the detective questioned him.

iii. Qualified Immunity Finally, Chief Lanier argues that the claims brought against her in her individual capacity should be dismissed on the basis of qualified immunity. The doctrine of qualified immunity13 protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statut ory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Th e protection of qualified immunity applies regardless of wh ether the government official’s error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson v. Callahan , 555 U.S. 223, 231 (2009). A right is “clearly established” if it is sufficiently clear that a reasonable official would understand that what she is doing viol ates that right. Wilson v. Layne , 526 U.S. 603, 614–15 (1999). To determine whether a reasonable official should have known that her actions violated rights conferred by federal law, the D.C. Circu it will “look to cases from the Supreme Court and this court, as well as to cases from ot her courts exhibiting a consensus view.” Johnson v. District of Columbia , 528 F.3d 969, 976 (D.C. Cir. 2008). Official s are presumed to have reasonable knowledge of all developments in constitutional law at the time the allege d violation occurred. Harris v. District of Columbia , 932 F.2d 10, 13 (D.C. Cir. 1991). “[They] can still be on notice that their conduct violates established la w even in novel factual circumstances.” Hope v. Pelzer , 536 U.S. 730, 741 (2002). Accordingly, an offici al may have fair warning that her conduct deprived the victim of a constitutional right even if there existed at the time no case with materially similar facts. Id. at 739. Mr. Evangelou rightly contends that the constitutional right of a government employee being questioned by his employer to either asse rt his Fifth Amendment right against selfincrimination or else receive immunity from the use of his answers in a criminal proceeding has been clearly established since 1968. See Uniformed Sanitation Men , 392 U.S. at 284–85; Gardner , 392 U.S. at 278–79; Garrity , 385 U.S. at 493. Chief Lanier offers two responses: first,14 that it does not violate any clearl y established constitutional right to sign a letter of termination, and second, that Mr. Evangelou has not alleged en ough facts to support a claim that Chief Lanier did anything more than that. The first argumen t is easily set aside: as discussed above, Mr. Evangelou alleges, upon information and belief, that Chief Lanier signed the letter for unconstitutional reasons. It was those reasons and not the mere signa ture that allegedly violated his constitutional rights. As for Chief Lanier’s second argument, that a “plea of salient allegations solely on information and belief” is insufficient after Iqbaland Twombly , Memo. in Supp. of Defs.’ Mot. to Dismiss at 11 (internal quotation marks omitted), “[t]he Twombly plausibility standard, which applies to all civil actions, see Iqbal , 556 U.S. at 684, does not preven t a plaintiff from ‘pleading facts alleged “upon information and belief”’ wher e the facts are peculiarly within the possession and control of the defendant, or where the belief is based on factual information that makes the inference of culpability plausible,” Arista Records LLC v. Doe 3 , 604 F.3d 110, 120 (2d Cir. 2010) (citations altered and omitted); accord Kvech v. Holder , 2011 WL 4369452, at *3 n.7 (D.D.C. Sept. 19, 2011). Mr. Evange lou alleges the following facts: that he was an exemplary officer who had demonstrated his qualifications and suitability for permanent employment, Am. Compl. ¶ 11, that he was falsely accused of extortion, id. ¶ 6, suspended as a result of the accusation, id. ¶ 7, contacted by an internal affair s investigator conducting a criminal investigation, with whom he refused to cooperate on Fifth Amendment grounds, id. ¶¶ 8–9, never again informed about the pr ogress of that investigation, id. ¶ 9, and fired by Chief Lanier without explanation, id. ¶ 10. From these factual allegations he infers that, upon information and belief, Chief Lanier decided to fire him becau se he asserted his Fifth Amendment rights and refused to answer the in vestigator’s questions. Id. ¶ 13. Chief Lanier asserts that this inference15 is impermissibly implausible, but does not expl ain why. The court can imagine many plausible and perfectly legal explanations for Chief Lanier’s conduct, but Twombly and Iqbal do not require an inference of culpability to be the onl y inference that could be drawn—only that it be among the set of plausible inferences. Mr. Evange lou has met that relatively low standard. To be fired without explanation afte r performing in an exemplary manner, then refusing to answer questions about a false accusation, gives rise to a plausible inference that the refusal was the reason for the firing. No more is needed at this stage. The defendants’ motion to dismiss the claim based on a violation of Mr. Evangelou’s right against self-incrimination will be denied.
B. Due Process Mr. Evangelou also alleges that, as a result of his termination, he “has been wrongly and unjustifiably stigmatized as being both unsuita ble and unqualified for employment as a police officer.” Am. Compl. ¶ 26. In support of that allegation, he points to a District of Columbia regulation providing that, as rele vant here, “an agency shall te rminate an employee during the probationary period whenever his or her work performance or conduc t fails to demonstrate his or her suitability and qualifications for continued employment.” 6-B D.C. Mun. Regs. § 814.1. He also adduces D.C. Code § 5-105.04, under which wh enever “the conduct or capacity of the [probationary employee] is determined by the Mayor of the District of Columbia, or his designated agent, to be unsatisfactory, the [pr obationary employee] shall be separated from the service after advance written notification of th e reasons for and the effective date of the separation.” Mr. Evangelou s uggests that the municipal re gulation implies that fired probationary employees are necessarily unsuitabl e or unqualified for their former positions, 5 and

5 In Piroglu v. Coleman , the D.C. Circuit interpreted a similar municipal regulation, which provided that “a probationary employee may be terminated before completing his probationary period if he ‘fails to demonstrat e that he . . . possesses the skill and character traits necessary for16 that he has been further stigmatized by being deni ed the written explanation which he claims that he was due. In response, the defendants argue only that the D.C. Code § 5-105.04 does not apply to probationary police officers. The defendants are correct, see D.C. C ODE § 1-632.03(a)(1)(D), but that fact does not def eat Mr. Evangelou’s claim. Under the precedents of the Supreme C ourt and the D.C. Circuit, a government employee’s due process rights are implicated wh en a firing or demotion is coupled with a defamatory official statement, see Mosrie v. Barry , 718 F.2d 1151, 1161 (D.C. Cir. 1983), or when an adverse employment action (considered somewhat more broadly) is combined with “a stigma or other disability that foreclose[s] [the plaintiff’s] freedom to take advantage of other employment opportunities,” O’Donnell v. Barry , 148 F.3d 1126, 1140 (D.C. Cir. 1998) (quoting Bd. of Regents v. Roth , 408 U.S. 564, 573 (1972)). The first case is known as a “reputation-plus” claim; “it presumably rests on the fact that offici al criticism will carry much more weight if the person criticized is at the same time demoted or fired.” Id. ; see also Paul v. Davis , 424 U.S. 693, 710 (1976) (reading Roth to hold that “defaming an individual in the course of declining to rehire him could entitle the person to notice and an opport unity to be heard as to the defamation,” but not to suggest that “a defamation perpetrated by a government official but unconnected with any refusal to rehire would be actionable” as a due process violation). The second case goes by the name of “stigma or disability,” because “i t does not depend on offi cial speech, but on a
satisfactory performance.’” 25 F.3d 1098, 1104 (D .C. Cir. 1994) (quoting District Personnel Manual, Ch. 8, Subpart 6.3(H)(1)). The Circuit rejected the argument “that under the regulation the District can terminate [a pr obationary employee’s] employment only if it determines that she lacks necessary skill and character traits,” ruling instead that although “[t]he regulation . . . sets out certain circumstances in which a probationa ry employee may be terminated,” “it does not limit the District’s discretionary right to otherwise terminate him.” Id. Although Piroglu turned on the question of whether the employee had a propert y right in her job, which is not an issue in this case, its logic would suggest that the mere fact of Mr. Ev angelou’s firing does not imply an official determination that “his . . . work perfor mance or conduct fail[ed] to demonstrate his . . . suitability and qualifications for continued employment.” 6-B D.C. Mun. Regs. § 814.1.17 continuing stigma or disability arising from official action.” O’Donnell , 148 F.3d at 1140. A plaintiff may not “sue purely on the basis of the stigma associat ed with being fired; the Court found in Paul v. Davis , 424 U.S. 693 (1976), that stigma al one is not actionable, without a showing that a ‘right or status previously recognized by state law’ has been ‘distinctly altered or extinguished.’” Id. at 1139 (quoting Paul , 424 U.S. at 711). In his opposition to this motion, Mr. Evangel ou appears to conflate these two claims, arguing that his firing damaged his reputation by stigmatizing hi m as unsuitable for employment as a police officer. He does not clearly identify either a defamatory official statement made in conjunction with his firing 6 or the distinct alteration or exti nguishment of a right or status previously recognized by District law. To succeed on the merits of his claim, he will need to prove one or the other. But the fact that Mr. Evangelou was not, as he alleged in his complaint, entitled to “advance written notification of the re asons for . . . the separation” from the police department, D.C. C ODE § 5-105.04, does not defeat either theo ry of liability—and the defendants offer no other argument against it. Their motion to dismiss the claim based on a violation of Mr. Evangelou’s Fifth Amendment right to due process will therefore be denied. 7

6 To the extent that he relies on the muni cipal regulation about th e firing of probationary employees to imply such a statement, that reliance appears tenuous. See supra , note 5.

7 The District and Chief Lanier also move to dismiss Mr. Evange lou’s claim for injunctive relief based upon the alleged violations of his constitu tional rights. In support of their motion, the defendants only repeat their argument that Mr . Evangelou has not prope rly alleged municipal liability—an argument that would not defeat the claim against Chief Lani er in her individual capacity, and one which has alrea dy been analyzed and rejected.18 IV. CONCLUSION For the reasons stated above, the defendants’ mo tion will be granted in part and denied in part. The claims brought against Chief Lanier in her official capacity will be dismissed as duplicative of the identical claims brought against the District, and the claims for violations of D.C. Code § 5-105.04 will be dismissed as conceded. All other claims survive the defendants’ motion, which will otherwise be denied. Rudolph Contreras United States District Judge Date: November 5, 2012