1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PRATEEK DAVE, :

:

Plaintiff, : Civil Action No.: 08-0856(RC)

:

 v. : Re Document No.: 37

: 

DISTRICT OF COLUMBIA :

METROPOLITAN POLICE :

DEPARTMENT, :

:

Defendant. :

MEMORANDUM OPINION

GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; REQUIRING 

SUPPLEMENTAL BRIEFING CONCERNING PLAINTIFF’S LIBERTY INTEREST DUE PROCESS 

CLAIM

I. INTRODUCTION

Plaintiff, Prateek Dave, is an Indian-American former cadet with the District of Columbia’s 

Metropolitan Police Department (“MPD”). He alleges that MPD failed to advance him and, ultimately, 

terminated his employment based on his race and national origin and in retaliation for his prior complaints 

of discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. 

("Title VII") and 42 U.S.C. § 1981. Additionally, plaintiff alleges that his termination violated the due 

process clause of the Fifth Amendment and 42 U.S.C. § 1983 because he was not given adequate notice 

or opportunity to be heard. Defendant, the District of Columbia, has moved for summary judgment. For 

the reasons set forth below, that motion is GRANTED in part, but the Court requires supplemental 

briefing concerning the liberty interest due process claim.

II. BACKGROUND

A. Factual Background

By letter dated September 15, 2004, MPD informed plaintiff that he had been selected for the 

position of Police Officer. The District of Columbia’s Amended Motion for Summary Judgment (“MSJ”) 
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[Docket #37], Exh. J. Plaintiff was explicitly informed that his first eighteen months would be served in a 

probationary status, during which his suitability for continued employment as a police officer would be 

assessed. Id. Additionally, plaintiff was informed that his appointment could be terminated with no 

rights to appeal. Id. Plaintiff accepted the offer and was assigned to recruit class 2004-8. MSJ, Exh. I.

From the start, plaintiff had difficulty with the physical training. On October 5, 2004, he failed 

the assessment test for push-ups, sit-ups and the 1.5 mile run. MSJ, Exh. Q. He also failed some of his 

academic exams initially and on re-examination. MSJ, Exh. I.

On November 8, 2004, plaintiff was injured during physical training. MSJ, Exh. A (Plaintiff’s 

Answers to Defendant’s First Set of Interrogatories) at 2-3. Plaintiff alleges that, during a training 

exercise, Sergeant Timothy Desmond1 pushed him down a steep and slippery hill, causing him to run 

down the hill into a parked vehicle resulting in severe injury to his shoulder. Id. Afterwards, plaintiff 

alleges that Sgt. Desmond asked him where he was from (which plaintiff interpreted as asking him what 

country he was from) and advised him not to let the class intimidate him (which plaintiff interpreted as he 

should not let his classmates intimidate him). See MSJ, Exh. B, Deposition of Prateek Dave (July 15, 

2011) (“Depo. Vol. I”) at 159-176. Plaintiff concluded that these statements were discriminatory and was 

offended by them. Id.

Plaintiff claims that he complained about Sgt. Desmond’s actions. Id. But it is unclear whether 

plaintiff complained that Sgt. Desmond’s actions were discriminatory. See Depo. Vol. I at 172 (plaintiff 

submitted PD-119 form to Lieutenant Tommy Hayes but does indicate whether it contained allegations of 

discrimination); MSJ, Exh. C, Deposition of Prateek Dave (July 27, 2011) ("Depo. Vol. II") at 68-69 

(plaintiff does not recollect whether the PD-119 referred to discrimination from Desmond), 70 (cannot 

recall whether he told Sgt. Jones that Desmond was racist); 90 (other than PD-119, plaintiff did not 

complain about Desmond’s discrimination but cannot recall what he put in the document), 144-45 

(plaintiff does not recollect telling anyone that Desmond discriminated against him, either verbally, in 

 1 This individual is referred to as Mr. Dumonte or DeMont in the deposition testimony. For 

purposes of simplicity, the Court refers to the name used in the Amended Complaint (Desmond). 
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exhibit 154, or in the PD-119), 147-48 (plaintiff may have told Sgt. Jones, but maybe not). This is not an 

insubstantial issue. Plaintiff has based a large part of his claims on alleged retaliation. But he has not 

clearly demonstrated that he engaged in protected activities by complaining about discrimination. 

Without having engaged in protected activity, there can be no actionable retaliation claims. Regardless, 

because the parties have not raised or briefed this issue, for purposes of resolving this motion, the Court 

will assume without deciding that plaintiff engaged in protected activity.

Subsequent to his shoulder injury, plaintiff was placed on limited duty for a period of time. 

Depo. Vol. II at 98. Plaintiff does not challenge the basis of that decision. Id. He acknowledges that the 

decision was based on medical opinions and does not allege that any of the individuals he claimed 

discriminated against him had any influence on the process. Id. at 106-109, 177. But while plaintiff was 

on limited duty related to his shoulder injury, his classmates continued to progress with their training. Id.

at 130-33. Thus, by the time plaintiff had returned to full duty status, his classmates had completed many 

of the training modules plaintiff had not, and the training class had graduated and plaintiff had to be sent 

to another class. Id. 

Subsequent to being returned to full duty, plaintiff failed two physical training tests. Id. at 155-

156; see also MSJ, Exh. Q. A third failure would have resulted in termination. Id. Although plaintiff 

was scheduled to take the third physical test, he did not do so because he developed asthma. Id. Based on 

plaintiff’s doctor’s recommendation (Dr. Varma), plaintiff was again placed on limited duty. Id. at 204-

205. This again resulted in plaintiff falling behind his classmates with respect to physical training. Id. at 

211-213.

As a result of his asthma, plaintiff received treatment from Dr. Michael Tsun, M.D. at Northern 

Virginia Pulmonary and Critical Care Associates. MSJ, Exh. F (Declaration of Michael Tsun, M.D.) 

(“Tsun Decl.”) at ¶ 3. Because of that treatment, on July 21, 2006, Dr. Tsun provided plaintiff with a 

handwritten note for hand-delivery to the Police and Fire Clinic Associates. Tsun Decl. at ¶ 5. That note 

stated that plaintiff could go back to full duty, however, Dr. Tsun preferred that plaintiff work indoors if 

air quality was code orange or red. Id.; MSJ, Exh. H at DC 31.
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Martin Rosenthal, M.D., is a physician at the Police and Fire Clinic Associates, LLC. MSJ, Exh. 

D (Declaration of Martin Rosenthal, M.D.) (“Rosenthal Decl.”) at ¶ 2. In that capacity he provides 

occupational health services to sworn members of MPD, including plaintiff. Id. Due to his asthma, 

plaintiff had been on non-performance of duty status that prevented him from performing the full duties 

of an MPD cadet from February 1, 2006 through August 2, 2006. Id. at ¶ 4. On August 1, 2006, Dr. 

Rosenthal received a hand-written note from Dr. Tsun indicating that plaintiff could return to full duty 

status. Id. at ¶ 5. Dr. Rosenthal signed the document he received. Id.; MSJ, Exh. H at DC 32. Dr. 

Rosenthal believed the document appeared altered because there were large gaps between numerous 

words in the document. Id.

The next day, on August 1, 2006, plaintiff saw Michelle Smith Jefferies, M.D., a consultant at the 

Police and Fire Clinic, for an Initial Disability Evaluation pertaining to his asthma. MSJ, Exh. E 

(Declaration of Michelle Smith-Jefferies, M.D.) (“Jefferies Decl.”) at ¶¶ 3-6. As part of this evaluation, 

Dr. Jefferies examined the note from Dr. Tsun. Id. at ¶¶ 6-8. Dr. Jefferies also considered the note 

suspicious and obtained plaintiff’s consent to talk directly to Dr. Tsun. Id. Immediately after the 

evaluation, Dr. Jefferies telephoned Dr. Tsun who read the contents of the note he wrote to Dr. Jefferies. 

Id. at ¶ 9. Dr. Tsun also faxed a copy of the note he wrote to Dr. Jefferies which included the restrictions 

set forth above. Id. Dr. Jefferies also spoke to Dr. Rosenthal and confirmed that the note had not been 

altered between the time he accepted delivery the previous day and the evaluation. Id. Based on her 

strong suspicion that plaintiff had altered Dr. Tsun’s handwritten note in an attempt to return to full duty, 

Dr. Jefferies submitted both versions of Dr. Tsun’s handwritten note and a memorandum detailing what 

had taken place to Captain Michael Eldridge, MPD’s Director of the Medical Services Section, for further 

review. Id. at ¶ 10; MSJ, Exh. H at DC 19.

As a result of the referral from Dr. Jefferies, MPD initiated an investigation concerning the 

allegation that plaintiff presented a falsified medical record to the doctors at the Police and Fire Clinic in 

an effort to maintain his employment. MSJ, Exh. H at DC 10-34. During the investigation, plaintiff 

denied he altered the document. Id. at DC 20-21. He stated then (and through this litigation) that he 
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provided the Police and Fire Clinic the handwritten note that Dr. Tsun’s office provided to him. Id.; 

Depo. Vol. II at 241-245.2

 Drs. Rosenthal and Jefferies cooperated with the investigation. Rosenthal 

Decl. at ¶ 8; Jefferies Decl. at ¶ 11. In the investigative report, Lieutenant Hayes concluded that plaintiff 

altered the document and recommended that he be cited for Adverse Action consistent with MPD 

guidelines. MSJ, Exh. H at DC 15. By letter dated September 19, 2006, the Director of MPD’s Institute 

of Police Science concurred in the report’s findings and recommended that plaintiff be terminated on the 

basis of the altered record. Id. at DC 11. On September 21, 2006, that recommendation was concurred 

with and forwarded to the Chief of Police. Id. at DC 10. By letter dated September 26, 2006 (served 

September 27, 2006), Chief of Police Ramsey notified plaintiff that he was terminated effective October 

13, 2006. Id. at DC 2 & 7. The letter gave no reason for the termination. Id.

B. Procedural History

On October 23, 2006, plaintiff submitted an administrative complaint to the District of 

Columbia’s Office of Human Rights. MSJ, Exh. L at DC 2-10. In it, he complained about race and 

disability discrimination concerning his discharge and discipline. Id. More specifically, plaintiff 

complained about his shoulder injury making him unable to properly do push-ups and being failed on that 

basis. Id. Plaintiff further complained that he was not given proper training and, after developing asthma, 

he was terminated because he could not perform his police duties. Id. By letter dated October 25, 2006, 

the Office of Human Rights informed plaintiff that his administrative complaint had been dismissed for 

failure to state a claim upon which relief may be granted. Id. at DC 1.

On March 13, 2007, plaintiff submitted an intake questionnaire to the Equal Employment 

Opportunity Commission (“EEOC”). Plaintiff’s Memorandum of Points and Authorities in Opposition to 

Defendant’s Amended Motion for Summary Judgment [Docket #42] (“Opposition”), Exh. B. In that 

Questionnaire, plaintiff asserted race and disability discrimination concerning lack of training and his 

 2 In the investigative report, Lieutenant Tommie Hayes states that, a few days subsequent to giving 

his official statement, the plaintiff came to his office and confessed to altering the medical record. MSJ, 

Exh. H at DC 15. Although Plaintiff has not expressly denied this, he does not concede that he confessed 

in this litigation.
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termination. Id. On May 25, 2007, plaintiff submitted a Charge of Discrimination to the EEOC. 

Opposition, Exh. C. In that Charge, however, he only alleged disability discrimination. Id.

Plaintiff filed the current action on May 19, 2008. After plaintiff received a full and fair 

opportunity to take discovery, defendant moved for summary judgment. For the reasons set forth below, 

that motion will be granted in part.

III. LEGAL STANDARD FOR A MOTION FOR SUMMARY JUDGMENT

Summary judgment may be granted when "the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. 

R. Civ. P. 56(a). A fact is "material" if it is capable of affecting the substantive outcome of the 

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" if 

sufficient evidence exists such that a reasonable jury could return a verdict for the non-moving 

party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

The principal purpose of summary judgment is to streamline litigation by disposing of 

factually unsupported claims or defenses and determining whether there is a genuine need for 

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party bears the initial 

responsibility of identifying those portions of the record which demonstrate the absence of any 

genuine issue of material fact. Id. at 323; Fed. R. Civ. P. 56(c)(1)(A) (noting that the movant 

may cite to "depositions, documents, electronically stored information, affidavits or declarations, 

. . . admissions, interrogatory answers, or other materials"). In response, the non-moving party 

must similarly designate specific facts in the record that reveal a genuine issue that is suitable for 

trial. Celotex, 477 U.S. at 324. On a motion for summary judgment, the court must "eschew 

making credibility determinations or weighing the evidence," Czekalski v. Peters, 475 F.3d 360, 

363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most 

favorable to the non-moving party, Anderson, 477 U.S. at 255. Nevertheless, conclusory 
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assertions offered without any evidentiary support do not establish a genuine issue for trial. 

Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

IV. ANALYSIS

Plaintiff alleges that MPD failed to advance him and, ultimately, terminated his 

employment based on his race and national origin and in retaliation for his prior complaints of 

discrimination in violation of Title VII and 42 U.S.C. § 1981. Additionally, plaintiff alleges that 

his termination violated the due process clause of the Fifth Amendment and 42 U.S.C. § 1983. 

For the reasons set forth below, all of these claims fail except that the Court requires 

supplemental briefing concerning plaintiff’s liberty interest due process claim.

A. Plaintiff’s Title VII Claims Are Untimely or Unexhausted

In its Motion for Summary Judgment, the District of Columbia argues that plaintiff’s 

Title VII claims are untimely because plaintiff failed to file his EEOC charge within 30 days of 

being informed by DC’s Office of Human Rights that his administrative complaint had been 

dismissed. MSJ at 13-14. Ignoring the plain language of the relevant statute, plaintiff responds 

that his Title VII claims are, in fact, timely because he filed his charge directly with the EEOC 

on May 25, 2007. Opposition at 7-8. Plaintiff’s Title VII claims fail because they are either 

untimely or unexhausted.

The EEOC has broad authority to enforce Title VII’s mandates, and the EEOC has 

established detailed procedures for the administrative resolution of discrimination complaints. 

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). “Complainants must timely 

exhaust these administrative remedies before bringing their claims to court.” Id. In particular, 

Title VII requires that plaintiffs file an EEOC charge within a certain time period of the allegedly 

unlawful act. 42 U.S.C. § 2000e-5(e)(1). Specifically, the statute states:
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(e) Time for filing charges; time for service of notice of charge on respondent; filing of 

charge by Commission with State or local agency; seniority system 

(1) A charge under this section shall be filed within one hundred and eighty days after the 

alleged unlawful employment practice occurred and notice of the charge (including the 

date, place and circumstances of the alleged unlawful employment practice) shall be 

served upon the person against whom such charge is made within ten days thereafter, 

except that in a case of an unlawful employment practice with respect to which the 

person aggrieved has initially instituted proceedings with a State or local agency with 

authority to grant or seek relief from such practice or to institute criminal proceedings 

with respect thereto upon receiving notice thereof, such charge shall be filed by or on 

behalf of the person aggrieved within three hundred days after the alleged unlawful 

employment practice occurred, or within thirty days after receiving notice that the State 

or local agency has terminated the proceedings under the State or local law, whichever is 

earlier, and a copy of such charge shall be filed by the Commission with the State or 

local agency.

42 U.S.C. § 2000e-5(e) (emphasis added).

Plaintiff did not file his EEOC charge within 30 days of being informed by the DC Office 

of Human Rights that his administrative complaint had been dismissed. Plaintiff was informed 

of the dismissal on or about October 25, 2006, MSJ, Exh. L, but did not file his EEOC charge 

until May 25, 2007, Opposition Exh. C. Although plaintiff argues that the case cited by the 

District of Columbia is inapposite, he does not explain why the plain language of the statute does 

not make his claim untimely.3

Instead, plaintiff argues that his filing of an EEOC charge on May 25, 2007 satisfies any 

exhaustion problem.4 But, even putting aside the plain language of the statute, the EEOC charge 

 3 Perhaps if plaintiff had filed his EEOC charge within 180 days of his termination (October 13, 

2006), he could have argued that the two prongs of the statute work in the alternative. See Rucker v. 

Western Elec. Co., 521 F. Supp. 986, 988 (M.D. Fla. 1981) (a plaintiff may file a charge within 30 days of 

the local agency dismissal or within 180 days of the allegedly discriminatory act). But he did not file his 

EEOC charge until May 25, 2007, well past the 180-day mark of approximately April 11, 2007. 

4 The DC Office of Human Right’s letter does not advise plaintiff that, because of the dismissal, he 

had 30 days to file an EEOC charge. MSJ, Exh. L. Perhaps plaintiff could have argued that he was 

entitled to equitable tolling on that basis. See generally Gates v. Georgia-Pacific Corp., 492 F.2d 292, 

295 (9th Cir. 1974). But equitable tolling is to be sparingly used and poses a high burden to meet. And 

plaintiff has not requested equitable tolling, much less proven entitlement to it.
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only claims disability discrimination. Opposition, Exh. C. However, the disability claims in this 

case have previously been dismissed. [Docket #17] So, whatever effect the filing of the EEOC 

charge had on the exhaustion of plaintiff’s administrative remedies, it did not preserve the Title 

VII race, national origin, and retaliation claims that remain before this Court. As such, they must 

be dismissed.5

B. Plaintiff’s Due Process Claims

Plaintiff claims that he was terminated in violation of his due pro process rights because 

he was not given adequate notice or opportunity to be heard. He brings this claim both directly 

under the Fifth Amendment of the Constitution and pursuant to 42 U.S.C. § 1983. Because 

plaintiff fails to demonstrate that he had a protected property interest in his continued 

employment, that portion of his due process claim fails. However, because the parties have 

inadequately briefed the liberty interest portion of plaintiff’s due process claims, the Court will 

order supplemental briefing on this claim only. 

1. Property Interest

In its motion for summary judgment, the District of Columbia argues that plaintiff had no 

property interest in his continued employment because he was a probationary employee. MSJ at 

20-21. Plaintiff attempts to shift the burden of proof by arguing that the “District provides no 

proof that Dave was a probationary employee.” Opposition at 13-14. Plaintiff claims that he 

was told he would be a probationary employee for eighteen months when he was hired, but he 

was terminated beyond the eighteen month period. Id. But as set forth below, plaintiff has failed 

to prove that, despite having been a probationary employee for more than eighteen months, he 

 5 Regardless, even had plaintiff exhausted these claims, they would fail on the merits. See infra pp. 

16-19.
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had any legitimate expectation of continued employment. Thus, he has failed to demonstrate that 

he had a property interest in his position at MPD. 

The Due Process Clause of the Fifth Amendment provides that no person shall be 

deprived of life, liberty, or property without due process of law. U.S. Const. amend. V. As 

plaintiff recognized in his Opposition, in order to establish a Fifth Amendment deprivation of 

property claim based on termination from employment, the Court must engage in the "familiar 

two-part inquiry." First, a plaintiff must demonstrate that he has a "property interest in continued 

employment." Orange v. District of Columbia, 59 F.3d 1267, 1274 (D.C. Cir.1995) (citing

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)). Property interests "'are created 

and their dimensions are defined by existing rules or understandings that stem from an 

independent source such as state law.'" Id. (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 

(1972)) (property interests are created and circumscribed "by existing rules or understandings 

that stem from an independent source such as state law - rules or understandings that secure 

certain benefits and that support claims of entitlement to those benefits."); see also Perry v. 

Sindermann, 408 U.S. 593, 604 (1972) (the policies and practices of an institution can create a 

protected property interest in government employment). "To have a property interest in a 

benefit, a person clearly must have more than an abstract need or desire for it. He must have 

more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement 

to it." Roth, 408 U.S. at 577 (1972). Only if plaintiff has demonstrated a property interest in 

continued employment, must the Court determine whether he was deprived of the process he was 

due. Orange, 59 F.3d at 1273-74 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 

(1982)).
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As the D.C. Circuit has made clear, an employee’s status as a probationary employee 

poses a large hurdle to clear in order to establish a property interest. Piroglu v. Coleman, 25 

F.3d 1098, 1104 (D.C. Cir. 1994). This is so because probationary employees are ordinarily 

considered employees at will and “‘[t]hose who are terminable at will have no property interest 

because there is no objective basis for believing that they will continue to be employed 

indefinitely.’” Id. (quoting Hall v. Ford, 856 F.2d 255, 265 (D.C. Cir. 1988)). It is undisputed 

that plaintiff was hired as a probationary employee and was told that his probationary status 

would last for a period of eighteen months. MSJ, Exh. J. But the question is what legitimate 

expectation of continued employment did plaintiff have once the eighteen month period expired? 

Although plaintiff may have had an abstract desire for continued employment, he had no 

property interest in such continued employment because no state law, rules or understandings 

provided him such.

First, plaintiff has pointed to no statute, regulation, or rule indicating that he was no 

longer a probationary employee and was entitled to any job protections simply because the 

eighteen-month period had elapsed. To the contrary, the applicable provision of the personnel 

manual (Code of D.C. Municipal Regulations) clearly indicates that, for entry-level police 

officers serving eighteen-month probationary periods, the probationary period is extended by a 

day “for each workday that the employee is not performing the full range of the police duties of 

the position to which assigned, including, but not limited to, periods of sick leave or non-contact 

status . . . . ” 8 D.P.M. § 813.9(b). As set forth above, due to his shoulder injury and asthma, 

plaintiff could not perform the full range of police duties for significant periods of time. Thus, 

despite being an MPD cadet for more than eighteen months, plaintiff’s eighteen-month 

probationary period was extended and, consequently, he was still a probationary employee at the 
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time of his termination. Plaintiff’s Opposition brief does not address this provision nor does he 

explain how he could have a different understanding in light of it.

Second, plaintiff points to no policies or understandings that would indicate that, 

regardless of the applicable personnel manual provision, an expectation of continued 

employment for someone in his position had built up over time. To the contrary, the letter the 

Fraternal Order of Police sent on plaintiff’s behalf to challenge his termination made clear that it 

too understood that plaintiff had no property interest in his position. MSJ, Exh. K at DC 4 

(noting its understanding that plaintiff was a probationary employee at the time of his 

termination because his probationary status had been extended because he was unable to perform 

his full range of police duties).

Accordingly, because plaintiff has failed to point to existing rules or understandings that 

stem from District of Columbia law, rules or understandings that support his claims to continued 

employment, he has not shown that he possessed a property interest in his position as an MPD 

cadet. Thus, he could be terminated without any process due to him and his claims based on an 

alleged deprivation of a property interest without due process of law fail.

2. Liberty Interest

In his Amended Complaint, plaintiff alleges that he had a liberty interest in his 

employment and the manner in which he was terminated without notice or opportunity to be 

heard stigmatized him and damaged his reputation and foreclosed him from taking advantage of 

future employment opportunities.6

 The District of Columbia’s motion for summary judgment 

 6 Plaintiff requests a number of forms of relief including reinstatement and backpay. Amended 

Complaint at Counts III & IV. However, it appears that his only available remedy may be a nameclearing hearing. Doe v. Dep’t of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985)(“Doe’s liberty interest 

implicates her post-employment reputation rather than any right to continued employment with the 

Department; if Doe can demonstrate that the DOJ harmed her professional standing without providing the 

proper procedural protections, her remedy is a ‘name-clearing’ hearing.”). 
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fails to address this claim and plaintiff re-asserted this claim in its Opposition. Despite the 

District of Columbia not filing a reply brief to address this claim, the Court will require 

supplemental briefing on this claim because it is unclear that plaintiff’s liberty interest claim 

should go to trial.7

Under the precedents of the Supreme Court and the D.C. Circuit, a government 

employee’s due process rights are implicated when 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

Roth, 408 U.S. at 573). The first case is known as a “reputation-plus” claim; “it presumably rests 

on the fact that official 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 opportunity 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 “it does not depend on official speech, but on a 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 associated with being fired; the Court found in Paul v. Davis, 

that stigma alone is not actionable, without a showing that a ‘right or status previously 

 7 The District of Columbia moved for an extension of time in order to file a reply brief based, in 

part, on the “complexity” of the case. [Docket # 43] Despite being granted the extension and the case’s 

complexity, the District of Columbia failed to file a reply brief. 
14

recognized by state law’ has been ‘distinctly altered or extinguished.’” Id. at 1139 (quoting

Paul, 424 U.S. at 711) (internal citations omitted).

Plaintiff’s termination letter did not state the reason for plaintiff’s termination. MSJ, 

Exh. H at DC 2. Although plaintiff was terminated for misconduct, the District did not make this 

information public. In fact, plaintiff claims that, until this litigation, he was unaware that the 

termination was based on his misconduct. Opposition at 8-9. These facts seem problematic for 

plaintiff’s reputation-plus claim. See, e.g., Harrison v. Bowen, 815 F.2d 1505, 1518 (D.C. Cir. 

1987) (“In Harrison’s case, however, there was no publication of the reasons for the dismissal, 

and thus no stigmatic harm.”); Mazaleski v. Treusell, 562 F.2d 701,712-14 (D.C. Cir. 1977) 

(requiring public dissemination of allegations of misconduct); De Sousa v. Dep’t of State, 840 F. 

Supp. 2d 92, 110-11 (D.D.C. 2012) (reputation-plus claim fails because government never 

spread derogatory information about plaintiff). 

Moreover, plaintiff has not presented facts indicating that his termination was 

accompanied with a change of legal status, beyond a disadvantage or impediment, that forecloses 

his freedom to take advantage of other employment opportunities. Mazaleski, 562 F.2d at 713; 

De Sousa, 840 F. Supp. 2d at 11-12 (plaintiff’s “stigma or disability” theory fails because she has 

not alleged any official government action that has automatically barred her from a specific set 

of positions within the government or generally blocked her from pursuing employment in her 

chosen field of interest). In fact, at the time of his deposition, plaintiff was gainfully employed 

as a private security officer in a federal government building. Depo. Vol. I at 54-55.

Accordingly, for the reasons set forth above, the Court is skeptical of plaintiff’s liberty 

interest claim. However, because the parties have not adequately briefed the issues, the Court 

will require supplemental briefing on only this claim.
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C. Plaintiff’s Discrimination & Retaliation Claims Fail

Plaintiff alleges that he was discriminated against on the basis of his race and national 

origin when he was denied certain training and held back in advancement during his cadet tenure 

and, ultimately, terminated. He brings retaliation claims on the same basis. He has brought 

these discrimination and retaliation claims pursuant to Title VII and 42 U.S.C. § 1981. As set 

forth above, plaintiff’s Title VII claims are untimely or unexhausted. And, as set forth below, his 

claims pursuant to 42 U.S.C. § 1981 fail on the merits.8

Section 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every 

State and Territory to make and enforce contracts, to sue, be parties, give evidence, and 

to the full and equal benefit of all laws and proceedings for the security of persons and 

property as is enjoyed by white citizens, and shall be subject to like punishment, pains, 

penalties, taxes, licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981. But before the merits of plaintiff’s discrimination and retaliation claims can 

be assessed, two preliminary issues must be addressed.

First, “[a] cause of action under § 1981 can be brought when a plaintiff has suffered an 

injury flowing from the racially motivated breach of his contractual relationship with another 

party.” Hamilton v. District of Columbia, 720 F. Supp. 2d 102, 113-14 (D.D.C. 2010). 

However, a plaintiff may not bring a claim against a government municipality directly under § 

1981; instead, it must be brought pursuant to 42 U.S.C. § 1983. Jett v. Dallas Independent 

School Dist., 491 U.S. 701 (1989).9

 As a result, a plaintiff must demonstrate that a violation of § 

 8 Even if plaintiff’s Title VII claims were timely and had been properly exhausted, they too would 

fail on the merits for the same reasons that his 42 U.S.C. § 1981 claims fail. 

9 Plaintiff’s Amended Complaint raises discrimination and retaliation claims directly pursuant to 

42 U.S.C. § 1981. Amended Complaint, Count II. And his 42 U.S.C. § 1983 claims pertain only to due 

process claims. Amended Complaint, Count IV. However, because the District of Columbia has not 

raised this issue in its motion for summary judgment, the Court will liberally interpret plaintiff’s § 1983 

claims to also encompass the § 1981 discrimination and retaliation claims. 
16

1981 “‘was caused by a custom or policy within the meaning of Monell and subsequent cases.’” 

Hamilton, 720 F. Supp. 2d at 114 (quoting Jett, 491 U.S. at 735-36).10

 A plaintiff “can establish 

that a custom or policy of the District violated [his] constitutional rights by demonstrating (1) 

‘the explicit setting of a policy by the government,’ (2) ‘the action of a policy maker within the 

government,’ (3) ‘the adoption through a knowing failure to act by a policy maker of actions by 

his subordinates that are so consistent that they have become custom,’ or (4) ‘the failure of the 

government to respond to a need (for example, training of employees) in such a manner as to 

show deliberate indifference to the risk that not addressing the need will result in constitutional 

violations.’” Hamilton v. District of Columbia, 852 F. Supp. 2d 139, 149-50 (D.D.C. 2012) 

(quoting Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)); see also 

Dickerson v. District of Columbia, 806 F. Supp. 2d 116, 120 (D.D.C. 2011).

With respect to plaintiff’s termination claim, that action was taken directly by the Chief 

of Police. MSJ, Exh. H at DC 2. "[T]he action of a policy maker within 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 tailored [only] to a particular situation 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 equally responsible whether that action is to be 

taken only once or to be taken repeatedly.'" Bd. of Cnty. Com'rs v. Brown, 520 U.S. 397, 418 

(1997) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)) (alteration in original). 

 10 The amendments to 42 U.S.C. § 1981 pursuant to the 1991 Civil Rights Act did not change the 

analysis set forth in Jett. Sledge v. District of Columbia, – F. Supp. 2d –, 2012 WL 2389992 (D.D.C. 

2012). 
17

Thus, with respect to the termination claim, plaintiff has met the Monell standard based on the 

action of a policy maker within the government.

But, with respect to the training and advancement claims, plaintiff has not clearly 

indicated what custom or policy caused his alleged harm. To the contrary, he challenges actions 

that appear to be unique to his situation. Nor has he alleged that such actions were undertaken 

by the Chief of Police or any other policy maker. See Hamilton, 852 F. Supp. 2d at 150 

(plaintiffs’ allegations of actions taken by their immediate supervisor, Sergeant Proctor, as well 

as Deputy Fire Chief Gary Palmer fail to meet the Monell standard because neither official has 

final policymaking authority under state law). Neither has he established that the District was 

deliberately indifferent to his purported discriminatory treatment. To the contrary, nowhere has 

he alleged that, prior to his termination, he complained to superiors about discriminatory or 

retaliatory treatment concerning his training/advancement.11

 Finally, plaintiff argues that it was 

widespread knowledge among recruits and officers that MPD had issues related to discriminatory 

terminations (but no word concerning training) and that such discriminatory actions had become 

so widespread as to have become custom. Opposition at 17. But such generalized claims 

without reference to specific facts are insufficient at the summary judgment stage. Patterson v. 

County of Oneida, New York, 375 F.3d 206 (2d Cir. 2004) (claim that discrimination against 

African-Americans was so widespread as to permit inference of policy or custom fails because it 

is too conclusory, unsupported with specific facts, and based on third-party hearsay); see also 

Hamilton, 852 F. Supp. 2d at 152 (fact that two former employees have filed similar suits does 

not help plaintiff because plaintiff failed to link discriminatory policy involved in prior suits to 

 11 To the extent that plaintiff complained about discrimination at all prior to his termination (and, as 

set forth above, that is not clear), it only concerned the actions of Sgt. Desmond during the specific 

training exercise on the hill. 
18

his own allegations of harm). Accordingly, the District of Columbia could not be held liable 

under §§ 1981/1983 for training/advancement claims.

Second, the District of Columbia argues that plaintiff cannot bring a claim pursuant to § 

1981 because, as a public employee, plaintiff’s employment is governed by applicable statutes 

and regulations, not contract. MSJ at 26-29. However, that argument fails for two reasons. 

Courts in this District have held that, just as at-will employees may bring claims pursuant to § 

1981, public employment does not preclude a § 1981 claim. Kennedy v. District of Columbia, 

519 F. Supp. 2d 50, 59-61 (D.D.C. 2007); see also Wilk v. District of Columbia, 730 F. Supp. 2d 

20, 23 n.3 (D.D.C. 2010). Moreover, a claim may be brought pursuant to § 1981's full and equal 

benefits clause, not just its make and enforce contracts clause. Mazloum v. District of Columbia, 

522 F. Supp. 2d 24, 37-39 (D.D.C. 2007). Accordingly, the Court will address plaintiff’s 

discrimination and retaliation claims on the merits.

1. Plaintiff’s Termination Claim Fails 

In assessing discrimination and retaliation claims under § 1981, courts utilize the familiar 

McDonnell Douglas burden-shifting paradigm utilized in Title VII cases. See, e.g., Berger v. 

Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1413 n.7 (D.C. Cir. 1988); Jenkins 

v. Nee, 640 F. Supp. 2d 47, 49 (D.D.C. 2009). Generally, to prevail on a claim of discrimination 

or retaliation under Title VII, a plaintiff must follow a three-part burden-shifting analysis known 

as the McDonnell Douglas framework. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003); 

Taylor v. Solis, 571 F.3d 1313, 1320 n.* (D.C. Cir. 2009) (observing that “[r]etaliation claims 

based upon circumstantial evidence are governed by the three-step test of McDonnell Douglas 

Corp. v. Green”); Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 
19

2003) (applying the McDonnell Douglas framework to a Title VII retaliation claim). The 

Supreme Court explained the framework as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a 

prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima 

facie case, the burden shifts to the defendant “to articulate some legitimate, 

nondiscriminatory reason for the employee’s rejection” . . . . Third, should the defendant 

carry this burden, the plaintiff must then have an opportunity to prove by a 

preponderance of the evidence that the legitimate reasons offered by the defendant were 

not its true reasons, but were a pretext for discrimination . . . . The ultimate burden of 

persuading the trier of fact that the defendant intentionally discriminated against the 

plaintiff remains at all times with the plaintiff.

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (internal citations omitted) 

(quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

To establish a prima facie case of race discrimination under Title VII (and thus under § 

1981), the plaintiff must show that “(1) [he] is a member of a protected class; (2) [he] suffered an 

adverse employment action; and (3) the unfavorable action gives rise to an inference of 

discrimination.” Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999); see also Stewart v. 

Ashcroft, 352 F.3d 422, 428 (D.C. Cir. 2003); Carroll v. England, 321 F. Supp. 2d 58, 68 

(D.D.C. 2004). “The burden of establishing a prima facie case of disparate treatment is not 

onerous.” Burdine, 450 U.S. at 253. If the plaintiff establishes a prima facie case, a presumption 

then arises that the employer unlawfully discriminated against the employee. Id. at 254. To 

rebut this presumption, the employer must articulate a legitimate, nondiscriminatory reason for 

its action. Id. The employer “need not persuade the court that it was actually motivated by the 

proffered reasons.” Id. Rather, “‘[t]he defendant must clearly set forth, through the introduction 

of admissible evidence,’ reasons for its actions which, if believed by the trier of fact, would 

support a finding that unlawful discrimination was not the cause of the employment action.” St. 

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (quoting Burdine, 450 U.S. at 254-55).
20

To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in 

a statutorily protected activity, (2) a reasonable employee would have found the challenged 

action materially adverse, and (3) there existed a causal connection between the protected

activity and the materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 

53, 67-69 (2006); Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). In the retaliation 

context, the term “adverse action” “encompass[es] a broader sweep of actions than those in a 

pure discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008). 

Thus, “[r]etaliation claims are ‘not limited to discriminatory actions that affect the terms and 

conditions of employment’ and may extend to harms that are not workplace-related or 

employment-related so long as ‘a reasonable employee would have found the challenged action 

materially adverse.’” Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 68 

(2006)). The plaintiff’s burden is not great: he “need only establish facts adequate to permit an 

inference of retaliatory motive.” Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001).

If the employer successfully presents a legitimate, non-discriminatory or non-retaliatory 

reason for its actions, the presumption raised by the prima facie case is rebutted and drops from 

the case. St. Mary’s Honor Ctr., 509 U.S. at 507; Brady v. Office of the Sergeant at Arms, 520 

F.3d 490, 494 (D.C. Cir. 2008) (noting that “the prima facie case is a largely unnecessary 

sideshow”). Upon such a showing by the defendant, the district court need resolve only one 

question: “Has the employee produced sufficient evidence for a reasonable jury to find that the 

employer’s asserted non-discriminatory [or non-retaliatory] reason was not the actual reason and 

that the employer intentionally discriminated against the employee on the basis of race, color, 

religion, sex, [] national origin [or retaliation]?” Brady, 520 F.3d at 494. The court must 

consider whether the jury could “infer discrimination [or retaliation] from the plaintiff’s prima 
21

facie case and any other evidence the plaintiff offers to show that the actions were discriminatory 

[or retaliatory] or that the non-discriminatory [or non-retaliatory] justification was pretextual.” 

Smith v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005) (quoting Murray v. Gilmore, 

406 F.3d 708, 713 (D.C. Cir. 2005)). The court should assess the plaintiff’s challenge to the 

employer’s explanation in light of the totality of the circumstances of the case. Aka v. Wash. 

Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998) (en banc).

Plaintiff was an Indian-American (Asian) police cadet who was terminated from his 

position. Plaintiff has also claimed that he complained of discriminatory treatment and was 

terminated because of such protected activity. But the District of Columbia has set forth a 

legitimate non-discriminatory, non-retaliatory basis for the dismissal, i.e., plaintiff was 

terminated because he altered a medical record and, during the investigation, denied having done 

so. MSJ, Exh. H at DC 10. Thus, the Court turns to the only relevant question: has plaintiff 

produced sufficient evidence for a reasonable jury to find that this reason for the termination was 

not the actual reason and that, instead, discrimination or retaliation was. On the record 

presented, the Court finds that a reasonable jury could not find in plaintiff’s favor.

Plaintiff challenges the District of Columbia’s non-discriminatory, non-retaliatory basis 

for his termination as pretextual. Opposition at 9-10. In this regard, he offers three arguments. 

Each of them fail. 

First, plaintiff argues that MPD’s shifting justification for his termination is probative of 

pretext. Opposition a 9. But MPD’s justification for the termination has not shifted. The 

justification for the termination was simply not previously communicated to him. Although the 

termination letter did not contain a reason for the termination, the contemporaneous paperwork 

leading up to the termination is clear: the basis for the determination was plaintiff’s altering of 
22

the medical record and his denial of such during the investigation. MSJ, Exh. H. Plaintiff’s 

Opposition does not address this undisputed chronology.12

 Accordingly, there is no record of 

any shifting justification.

Second, plaintiff argues that he has steadfastly maintained that the falsification 

allegations are false. Opposition at 9-10. But that is beside the point. In a situation such as that 

presented, the question is not whether plaintiff altered the document or falsely denied he did, but 

whether MPD honestly and reasonably believed that the underlying misconduct occurred. 

Brady, 520 F.3d at 496 (“The question is not whether the underlying sexual harassment occurred; 

rather, the issue is whether the employer honestly and reasonably believed that the underlying 

sexual harassment incident occurred.”);13 Musick v. Salazar, 839 F. Supp. 2d 86, 97-98 (D.D.C. 

2012) (same); Asewole v. PSI Services, 798 F. Supp. 2d 57, 63 n.4 (D.D.C. 2011) (same); 

Dunning v. Quander, 468 F. Supp. 2d 23, 32 n.10 (D.D.C. 2006) (declining to review de novo

results of investigation because court is not to act as super-personnel department). Although 

plaintiff implies that the investigation was inadequately conducted, he has presented no evidence 

 12 Although plaintiff notes that the basis for the termination is not mentioned in the D.C. Office of 

Human Rights or the EEOC documentation, Opposition at 9, the record before the Court does not indicate 

that MPD provided any basis for the termination. 

13 In Brady, the Circuit specifically rejected what plaintiff attempts to do here: create a dispute of 

fact by merely denying that the underlying events occurred. Brady, 520 F.3d at 496 (“Allowing Brady to 

end-run summary judgment in these circumstances would create significant practical problems. 

Employers obviously have to resolve factual disagreements all the time in order to make employment 

decisions regarding hiring, promotion, discipline, demotion, firing, and the like. In many situations, 

employers must decide disputes based on credibility assessments, circumstantial evidence, and 

incomplete information. But Brady's argument would mean that every employee who is disciplined, 

demoted, or fired for alleged misconduct could sue for employment discrimination based on race, color, 

religion, sex, or national origin and-merely by denying the underlying allegation of misconductautomatically obtain a jury trial. Brady cites no support for that proposition, which would wreak havoc on 

district courts' orderly resolution of employment discrimination cases and improperly put employers in a 

damned-if-you-do, damned-if-you-don't posture when addressing disciplinary issues in the workplace.”).
23

that MPD did not honestly believe in its conclusion. The matter investigated was straightforward and narrow. The fact that the investigation was short does not impugn its 

reasonableness. Brady, 520 F.3d at 496 (rejecting claim that employer over-reacted and adopted 

hair-trigger approach to the reported incident). Although plaintiff made a general denial that he 

altered the medical record, he had the greatest motive to do so in order to be returned to full duty, 

a number of unbiased medical professionals supported the conclusion that he did alter the 

document, and no other plausible explanation has been proffered for how an indisputably altered 

doctor’s note was presented to the Clinic. Simply put, it was reasonable for MPD to rely on the 

investigation’s conclusions.

Finally, plaintiff argues that the investigation was tainted because the person who led the 

investigation, Lt. Hayes, was also the person who had previously ignored plaintiff’s complaints 

about the incident with Sgt. Desmond in which plaintiff injured his shoulder. Opposition at 10. 

Thus, plaintiff claims that Sgt. Desmond would have been biased against plaintiff calling the 

objectivity and, hence, the validity of the investigation into question. But plaintiff does not 

challenge the motives or credibility of any of the witnesses to the events. In fact, the witnesses 

were unbiased medical professionals who had nothing to do with the Sgt. Desmond incident. 

And plaintiff points to no unreasonable conclusions reached by Lt. Hayes based on the straightforward evidence. Thus, no reasonable juror would infer discrimination or retaliation based on 

plaintiff’s attenuated and poorly-developed theory of Lt. Hayes’s ill motive.

Accordingly, plaintiff has failed to demonstrate that the legitimate non-discriminatory, 

non-retaliatory reason for his termination was pretextual. Because plaintiff has failed to produce 

sufficient evidence for a reasonable jury to find that MPD’s reason for his termination was not 

the actual reason and that MPD intentionally discriminated against him on the basis of his race, 
24

national origin or retaliation, his § 1981 claims concerning his termination must be dismissed.14 

2. Plaintiff’s Training and Advancement Claim Fails15

Plaintiff has alleged that, in retaliation for engaging in protected activity, he was 

relegated to only academic work at the academy, made to train with a lower class, subjected to 

sarcastic remarks about his ability to do his job, and deprived of specialized training (particularly 

firearms and vehicle skills training). Opposition at 11-12. But these claims fail on the facts and 

the law.

With respect to being relegated to only academic work at the academy, plaintiff’s own 

deposition testimony is that this was a result of his being placed in a limited duty status based 

first on his shoulder injury and later on his asthma (based on his personal doctor’s 

recommendation). Depo. Vol. II at 130-33; 177-78; 201-05; 211-13. And, as a result, his cadet 

class advanced beyond him and he fell behind to subsequent cadet classes. Id. In his deposition 

testimony, plaintiff acknowledged that being relegated to only academic work and, as a result, 

falling behind one’s cadet class, was the logical consequence of being placed on limited duty 

which decision was based on medical advice. Id. Accordingly, plaintiff has presented no 

evidence (beyond conclusory allegations) that these acts were based on a desire to retaliate 

against him.

With respect to the allegation concerning being subjected to sarcastic remarks, this claim 

too fails on the facts. At his deposition, plaintiff was unable to provide any information about 

that claim. Depo. Vol. II at 213. As such, no evidence supports it. And this claim fails on the 

 14 And, as previously stated, the same analysis would also doom any of plaintiff’s Title VII claims 

had they been timely or properly exhausted.

15 As set forth above, plaintiff’s training and advancement claim fails because he has failed to 

satisfy the Monell standard. See supra pp. 17-18. But the Court analyzes the merits as an alternative 

basis to dismiss these claims.
25

law as well because being subjected to sarcastic remarks does not rise to the level of material 

adversity on which a retaliation claim may be based. See, e.g., Taylor, 571 F.3d at 1321 

(employer’s criticism of plaintiff for exhibiting “negative behaviors” was not a materially 

adverse action because petty slights and minor annoyances would not deter a reasonable 

employee from making a charge of discrimination); Baloch, 550 F.3d at 1199 (supervisor’s 

alleged profanity-laden yelling does not meet the requisite level of regularity or severity to 

constitute material adversity because the Supreme Court has emphasized that sporadic verbal 

altercations or disagreements do not qualify as adverse actions for purposes of retaliation 

claims).

Finally, plaintiff claims that he was denied specialized training (particularly firearms and 

vehicle skills training) in retaliation for his complaints of discrimination. But, even according to 

his own testimony, he was not denied such training; he was simply told he had to first complete 

his physical training before he could receive the specialized training. Depo. Vol. II. at 132-36. 

So, in fact, it was not so much a denial of training; instead it was a decision on which order

plaintiff would receive his training (the entire academy involves training). Plaintiff argues that 

the denial of this training was materially adverse because such training was integral to being a 

police officer and the denial of such would affect his future employment with MPD. Opposition 

at 11-12. But, at this point in time, plaintiff had not completed his physical training and, in fact, 

never did complete it. Absent completing the physical training, plaintiff could never become a 

police officer. Thus, under these facts, the Court concludes that MPD’s decision to postpone the 

specialized training until plaintiff completed his physical training was not materially adverse 

because it, in fact, did not materially change his employment conditions, status or benefits and 
26

not receiving such training did not result in objectively tangible harm to this plaintiff.16 Allen v. 

Napolitano, 774 F. Supp. 2d 186, 204 (D.D.C. 2011); see also Dorns v. Geithner, 692 F. Supp. 

2d 119, 132 (D.D.C. 2010) (employer’s refusal to allow plaintiff to attend four training courses 

was not materially adverse because plaintiff failed to demonstrate that the denial produced any 

adverse consequences in her employment status, conditions, or benefits); Powell v. Castaneda, 

247 F.R.D. 179, 183-84 (D.D.C. 2007) (denial of a training session was not materially adverse 

because such a minor inconvenience would not deter a reasonable employee from making or 

supporting a charge of discrimination).

Accordingly, plaintiff’s allegations pursuant to § 1981 that, in retaliation for engaging in 

protected activity, he was relegated to only academic work at the academy, made to train with a 

lower class, subjected to sarcastic remarks about his ability to do his job, and deprived of 

specialized training (particularly firearms and vehicle skills training) fail on the facts and the 

law. Consequently, they will be dismissed.

IV. CONCLUSION

For the foregoing reasons, defendant's motion for summary judgment is granted in part

and denied in part. Plaintiff’s discrimination and retaliation claims based on Title VII and 42 

U.S.C. §§ 1981 & 1983 are dismissed. Plaintiff’s Fifth Amendment and 42 U.S.C. §§ 1983 due 

process claims based on a purported property interest are also dismissed. The Court requests 

supplemental briefing only on plaintiff’s Fifth Amendment and 42 U.S.C. §§ 1983 due process 

claim based on a purported liberty interest. An Order consistent with this Memorandum Opinion 

 16 Obviously, not having received this specialized training had nothing whatsoever to do with 

plaintiff’s termination or his failure to graduate from the academy and become a police officer. 
27

is separately and contemporaneously issued this 9th day of November, 2012.

RUDOLPH CONTRERAS

United States District Judge