Ayanna Blue v. District of Columbia Public

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2015 Decided December 29, 2015

No. 14-7189

AYANNA BLUE,

APPELLANT

v.

DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-01504)

Natalie A. Baughman argued the cause for appellant.

With her on the brief was Scott D. Gilbert.

Carl J. Schifferle, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellee. With him on the brief were Karl A.

Racine, Attorney General, Todd S. Kim, Solicitor General,

and Loren L. AliKhan, Deputy Solicitor General.

Before: HENDERSON and TATEL, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

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TATEL, Circuit Judge: Appellant Ayanna Blue alleges

that while attending a District of Columbia school for

emotionally disturbed students, she and a teacher had a

consensual sexual relationship—a relationship that led to the

birth of a child. Blue seeks damages from the District of

Columbia under 42 U.S.C. § 1983, Title IX, and various D.C.

tort laws. The district court dismissed her complaint for

failure to state a claim. For the reasons set forth in this

opinion, we affirm.

I.

Because this case comes to us at the motion to dismiss

stage, “we must accept all factual allegations in the complaint

as true.” NB ex rel. Peacock v. District of Columbia, 794 F.3d

31, 42 (D.C. Cir. 2015). According to the complaint, Robert

Weismiller, the teacher who had a sexual relationship with

Blue, taught at various schools in the D.C. area for much of

the past forty years.

In the mid-1970s, while a gym and driver’s education

teacher at a public high school in Prince George’s County,

Maryland, Weismiller “initiated sexual relationships with two

students.” Second Am. Compl. ¶ 24. Weismiller persuaded

“one 16-year-old student . . . to have sex with him at various

locations, both on and off of school property.” Id. He also

“had sexual intercourse with a second student” who was “17

years old when the sexual relationship began.” Id. ¶ 25.

“While serving as the student’s driver education teacher,

Weismiller on multiple occasions drove the student to a

motel, where they had sex.” Id. After two of her classmates

“informed the student’s parents that they had seen her with

Weismiller,” the girl’s parents “informed the principal of

what the classmates had seen, and demanded that the principal

take action.” Id. The complaint says nothing about what the

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principal or the school district did in response to the parents’

complaint. Weismiller stopped working at the school in 1978.

Several years later, in 1984, while teaching at a public

middle school in Prince William County, Virginia, Weismiller

“sexually assaulted two eighth grade students.” Id. ¶ 26.

Weismiller’s “misconduct toward the students continued into

their ninth grade year, when he was transferred to the

[students’ high school].” Id. A lawsuit filed in 1986 regarding

this misconduct named as defendants “Weismiller, the Prince

William County School Board, and several school officials.”

Id. Weismiller “was fired . . . as a result of this lawsuit.” Id.

In the late 1990s, after a brief stint at another school,

Weismiller started working at a middle school in the Fairfax

County, Virginia, public school system. Id. ¶ 28. About a year

into Weismiller’s tenure, one of the plaintiffs in the Prince

William County lawsuit, who happened to be working for the

Fairfax schools, saw Weismiller at a school event, “contacted

the Human Resources Department for Fairfax County,

informed officials about her lawsuit against Weismiller, and

was told that he would be terminated from his teaching

position immediately.” Id. ¶ 27. Although the complaint

contains no information about whether the school system

followed through on its promise, it does indicate that

Weismiller stopped working for the school system that year.

Id. ¶ 28.

Setting the stage for this litigation, the District of

Columbia Public Schools (DCPS) hired Weismiller in 2008 to

teach at the Transition Academy at Shadd, a school for

emotionally disturbed students. Ayanna Blue, then eighteen

years old, was enrolled in one of Weismiller’s classes.

Throughout the fall of 2008, Weismiller made advances

toward Blue, including telling her that “[i]f [he] were 30 years

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younger, [he] would marry [her],” “wink[ing] at [her] in

class[,] and kiss[ing] her on numerous occasions.” Id. ¶ 15

(internal quotation marks omitted). Around November 19,

Weismiller “drove [Blue] home from school, and the two had

sexual intercourse in his car.” Id. ¶ 19. Before their

relationship ended in April 2009, “numerous incidents

occurr[ed] in Weismiller’s classroom during the lunch period,

in his car, and at [Blue’s] home.” Id. ¶ 20. Although Blue

never told school officials about the relationship, she did

inform school personnel in December 2008 that she believed

she was pregnant, and they sent her to the health office to take

a pregnancy test, which came back negative. Later, Blue did

become pregnant. After Blue’s daughter was born in late

2009, id. ¶ 21, Blue, her daughter, and Weismiller took a

paternity test, which “[was] positive, indicating a 99.99%

probability that Weismiller is the baby’s father,” id. ¶ 22. The

complaint does not allege that the relationship was ever

involuntary.

Earlier, in May 2009, after DCPS learned that Blue was

pregnant but before she had the baby, it initiated an

investigation of Weismiller. Id. ¶ 29. Weismiller denied that

he had engaged in a sexual relationship with Blue, id. ¶ 30,

but every witness DCPS interviewed—including teachers, an

educational aide, Weismiller’s classroom aide, and a clinical

psychologist—stated that they had seen the two alone together

in Weismiller’s classroom or had heard rumors that the two

were having a sexual relationship, id. ¶¶ 31–36. One witness

saw the two alone together in Weismiller’s classroom “during

the lunch period, with the lights off.” Id. ¶ 36. “Despite these

first-hand accounts, DCPS, at the close of its investigation,

acquitted Weismiller of any misconduct.” Id. ¶ 38. Five

months later, in October 2009, DCPS terminated Weismiller

as part of a “system-wide reduction in force.” Id. ¶ 14.

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In 2010, Blue filed suit in the U.S. District Court for the

District of Columbia, asserting numerous claims against

Weismiller; the then-Chancellor of DCPS, Michelle Rhee;

DCPS; and the District of Columbia. Blue has since settled

her claims against Weismiller and dropped her claims against

DCPS and Rhee, so only her claims against the District of

Columbia remain at issue. The district court granted the

District’s motion to dismiss these claims for failure to state a

claim. See Fed. R. Civ. P. 12(b)(6).

On appeal, Blue pursues her claims against the District

under section 1983, Title IX, and various D.C. tort laws. Our

review is de novo. Tuaua v. United States, 788 F.3d 300, 302

(D.C. Cir. 2015).

II.

Accepting the complaint’s allegations as true, one might

think that this case is relatively easy. DCPS hired Weismiller

even though he had a history of preying on children in two

neighboring school systems. DCPS then assigned him to teach

at a school for special education students, where he engaged

in a sexual relationship with a student, Ayanna Blue. Given

this background, most people would reasonably assume that

Blue should have an opportunity to prove her case. But

unfortunately for her, a series of judicially created and

statutory obstacles, all binding on this court, stand in her path.

Section 1983

To state a claim for relief against a municipality under

section 1983, a plaintiff must satisfy two requirements: she

must plead “a predicate constitutional violation” and that “a

custom or policy of the municipality caused the violation.”

Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir.

2003). Blue claims that the District’s actions “violated [her]

rights under the Due Process Clause of the Fifth Amendment

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to be free from conduct that violates her bodily integrity,”

Second Am. Compl. ¶ 87, by allowing Weismiller, a teacher,

to engage her, an eighteen-year-old student, in a consensual

sexual relationship. The district court found it unnecessary to

determine whether a right to be free from such a relationship

exists because, even assuming it does, it concluded that Blue

failed to allege that a district policy caused the violation. Blue

v. District of Columbia, 850 F. Supp. 2d 16, 25, 29 (D.D.C.

2012); see also Monell v. Department of Social Services, 436

U.S. 658, 690 (1978). We agree.

This circuit has identified several ways in which a

plaintiff may allege a municipal policy or custom.

Specifically, she may point to (1) “the explicit setting of a

policy by the government that violates the Constitution,” (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.” Baker, 326 F.3d at 1306 (citations omitted). On

appeal, Blue pursues only one of these theories: that under

certain circumstances, a single decision by a municipal

official with final policymaking authority can constitute a

municipal policy. Id. (citing City of St. Louis v. Praprotnik,

485 U.S. 112, 123–30 (1988) (plurality opinion)). In order for

a municipality to be held liable for the single decision of a

final policymaker, that official must have demonstrated

“deliberate indifference to the risk that a violation of a

particular constitutional or statutory right [would] follow the

decision.” Board of County Commissioners v. Brown, 520

U.S. 397, 411 (1997). Blue alleges that two District decisions

satisfied this standard: the decision to hire Weismiller without

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conducting a proper background investigation and the

decision not to terminate Weismiller after DCPS investigated

his sexual relationship with Blue.

The second of Blue’s theories merits only brief attention.

Although the district court rejected Blue’s failure-to-fire

claim for multiple reasons, we need address only one: that the

District’s decision to retain Weismiller after the investigation

could not have caused the specific injury that Blue relied upon

as the basis for her section 1983 claim—the sexual

relationship with Weismiller. Blue, 850 F. Supp. 2d at 28.

This is correct. Blue’s relationship with Weismiller ended in

April 2009, a month before DCPS initiated its investigation.

The District’s May decision to retain Weismiller thus could

not have affected the no-longer-existing relationship.

Blue presents a second variation of her failure-to-fire

claim—one that would, if valid, avoid the causation problem.

She contends that the District’s single decision not to

reprimand Weismiller after the District investigated the

relationship demonstrates a municipal policy of ignoring

sexual abuse by teachers. But Blue has cited no decision by

this circuit, nor are we aware of one, that supports such a

theory of municipal liability. As Blue points out, other circuits

have recognized that theory, but in the cases Blue cites, the

municipality failed to respond to improper actions by

numerous municipal officials. McRorie v. Shimoda, 795 F.2d

780, 784 (9th Cir. 1986) (citing actions by numerous prison

guards); Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th

Cir. 1985) (describing “repeated acts of abuse . . . by several

officers in several episodes”); Owens v. Haas, 601 F.2d 1242,

1245 (2d Cir. 1979) (recounting the severe beating of a

prisoner by “[a]pproximately seven guards”). This case is

quite different. Not only does it involve the alleged

misbehavior of only one municipal employee, but, more

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important, DCPS’s May 2009 investigation concluded that

Weismiller never had a sexual relationship with Blue. The

District therefore had no reason to fire Weismiller.

Blue’s second asserted basis for a municipal policy—the

District’s failure to properly screen Weismiller before hiring

him—warrants somewhat more analysis. Blue contends that

the District’s failure to properly screen Weismiller qualified

as a municipal policy because it was a single decision by a

final policymaker. The district court rejected this theory

because Blue failed to “allege[] . . . that the decision to hire

Weismiller without an adequate background check was made

by a final municipal policymaker.” Blue, 850 F. Supp. 2d at

27. Instead, Blue alleged only that “[the] District has ‘a

custom, policy or practice of failing to adequately investigate

the backgrounds of its teachers before hiring them.’” Id.

(quoting Second Am. Compl. ¶ 82).

We agree with the district court that Blue’s assertion is

insufficient to support a claim that the District, in failing to

properly screen Weismiller, acted pursuant to a municipal

policy actionable under section 1983. As the Supreme Court

made clear in Ashcroft v. Iqbal, when reviewing the

sufficiency of a complaint, a court must first “tak[e] note of

the elements a plaintiff must plead to state [the] claim” to

relief, 556 U.S. 662, 675 (2009), and then determine whether

the plaintiff has pleaded those elements with adequate factual

support to “state a claim to relief that is plausible on its face,”

id. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)) (internal quotation marks omitted). Blue has

failed to satisfy Iqbal’s first step.

Section 1983 plaintiffs have several ways to allege a

municipal policy, each with its own elements. If the plaintiff

fails to identify the type of municipal policy at issue, the court

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would be unable to determine, as required by Iqbal’s second

step, whether the plaintiff had provided plausible support for

her claim. Although the court could try to surmise which

theory of municipal liability has the strongest support in the

complaint, this is not our role. It therefore follows that to state

a valid claim against a municipality under section 1983, a

plaintiff must plead the elements of the relevant type of

municipal policy.

Under this standard, Blue’s inadequate screening claim

fails because, as she concedes, she never indicated the

contours of any type of municipal policy. At most, the

complaint suggests that the District made a serious mistake in

hiring Weismiller, just as other school districts have done in

the past. Although, if true, this would be distressing, the

complaint does not allege that the District has a policy of

failing to properly screen employees.

We draw support for our position from the decisions of

the two other circuits that have considered this issue. In

Santiago v. Warminster Township, the plaintiff alleged that

the municipality was liable based on a single decision by the

chief of police. 629 F.3d 121, 125 (3d Cir. 2010). The Third

Circuit affirmed the district court’s dismissal of the case,

finding that the complaint failed to adequately plead

municipal liability because it never alleged that the police

chief had final policymaking authority. Id. at 135. The court

explained that the plaintiff had “to plead in some fashion that

[the police chief] had final policy making authority, as that is

a key element of a Monell claim.” Id. at 135 n.11. The

Seventh Circuit has similarly held that a plaintiff must plead

that a final municipal policymaker made the decision that

caused the violation. Baxter by Baxter v. Vigo County School

Corp., 26 F.3d 728, 735 (7th Cir. 1994) (“[I]t must first be

alleged adequately that a defendant is a final policymaker.

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Only then can a court proceed to the question of whether the

single act or decision of that defendant constituted municipal

policy.”). In other words, in order for the district court to

assess whether Blue stated a facially plausible complaint,

Blue needed to assert the elements of the type of municipal

policy that caused her injury. Blue failed to do so.

Title IX

Blue next argues that the District denied her the benefits

of an education on the basis of sex in violation of Title IX of

the Education Amendments of 1972, 20 U.S.C. §§ 1681 et

seq., when it failed to end Weismiller’s sexual relationship

with her. Title IX provides that “[n]o person in the United

States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity

receiving Federal financial assistance.” Id. § 1681(a). In

Gebser v. Lago Vista Independent School District, the

Supreme Court held that a student can recover damages under

Title IX for sexual harassment by a teacher when three

elements exist: (1) an appropriate official at the school, i.e.,

one with authority to institute corrective measures, (2) had

actual notice of the harassment and (3) demonstrated

deliberate indifference to the harassment. 524 U.S. 274, 290

(1998). The district court determined that Blue had failed to

demonstrate any of the three. Blue, 850 F. Supp. 2d at 31–36.

Although Blue insists that she has established all three

elements, we need address only the second, actual notice.

In Davis ex rel. LaShonda D. v. Monroe County Board of

Education, the Supreme Court interpreted the actual notice

requirement to mean that school officials must have been

aware of “known acts of sexual harassment by a teacher.” 526

U.S. 629, 641 (1999). The Court further held that such acts

must have come to the school officials’ attention while the

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harassment was ongoing. See id. at 642–43 (explaining that to

be liable, the school officials’ deliberate indifference must

have caused the discrimination).

Blue has failed to satisfy the Davis standard. Nowhere in

her complaint did she allege that anyone—much less an

appropriate official—knew of any acts of sexual harassment

while the harassment was ongoing. She did allege that school

officials had actual notice “as shown by the pregnancy test

she took at the school’s request in December 2008 and

through interviews of teachers and staff who had seen

Weismiller and [Blue] alone together in his classroom.”

Second Am. Compl. ¶ 94. Neither suffices. Because Blue

never alleged that she revealed to school officials at the time

of the pregnancy test that Weismiller was the potential father,

school officials could not have known that Weismiller was

sexually harassing her. As for the teachers and staff seeing

Weismiller and Blue alone together, even assuming, as Blue

alleges, that Weismiller was sexually harassing her in the

classroom, Davis requires that the sexual harassment be

“known,” and Blue has failed to allege that anyone knew

sexual harassment was occurring in Weismiller’s classroom.

Blue has therefore failed to state a claim to relief under Title

IX.

D.C. Tort Claims

This brings us, finally, to Blue’s tort claims against the

District. The district court dismissed these claims, finding that

Blue had failed to comply with D.C. Code § 12-309, Blue,

850 F. Supp. 2d at 36–38, which requires that a person

bringing a claim against the District must “within six months

after the injury . . . give[] notice in writing to the Mayor of the

District of Columbia of the approximate time, place, cause,

and circumstances of the injury or damage.” Section 12-309

further provides that “[a] report in writing by the Metropolitan

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Police Department, in regular course of duty, is a sufficient

notice.” The D.C. Court of Appeals has “repeatedly . . . held

that ‘compliance with the statutory notice requirement is

mandatory,’ and that § 12-309 ‘is to be construed narrowly

against claimants.’” Owens v. District of Columbia, 993 A.2d

1085, 1088 (D.C. 2010) (quoting, respectively, Pitts v.

District of Columbia, 391 A.2d 803, 807 (D.C. 1978), and

Brown v. District of Columbia, 853 A.2d 733, 736 (D.C.

2004)). The D.C. Court of Appeals has also held that the

“statutory exception to formal notice [within section 12-309]

. . . is limited to police reports.” Campbell v. District of

Columbia, 568 A.2d 1076, 1078 (D.C. 1990).

Conceding that she failed to provide notice to the mayor

within six months of her injury, Blue nonetheless argues that

section 12-309’s notice requirement has been satisfied

because DCPS investigated her allegations, meaning that the

District had actual notice of her injury. This theory, however,

runs counter to longstanding D.C. Court of Appeals

precedent, which makes clear not only that the notice

requirement is “mandatory,” but also that it must be

“construed narrowly against claimants.” Owens, 993 A.2d at

1088. Emphasizing the strictness of this requirement, the D.C.

Court of Appeals has even found that a plaintiff failed to

satisfy section 12-309 when she gave oral notice to the city.

Pitts, 391 A.2d at 806 (explaining that oral notice of the

injury was “contrary to both the statute and the case law of

this jurisdiction”). Under D.C. law, then, it is not enough that

the District has knowledge; that knowledge must come in

writing from the claimant.

Alternatively, seeking to take advantage of section 12-

309’s police report exception, Blue argues that she is entitled

to discover whether a police report about the incident exists or

whether the police assisted in drafting DCPS’s May 2009

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investigative report. But because Blue failed to advance this

argument in the district court, she has forfeited it here. Flynn

v. Commissioner of Internal Revenue Service, 269 F.3d 1064,

1068–69 (D.C. Cir. 2001) (“[A]n argument not made in the

lower tribunal is deemed forfeited and will not be entertained

absent ‘exceptional circumstances.’”).

III.

For the foregoing reasons, we affirm.

So ordered.