Adelegan v. District of Columbia

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OLUSEGUN ADELEGAN, Plaintiff, Case No. 19-cv-3440 (JMC) v. DISTRICT OF COLUMBIA, et al., Defendants. MEMORANDUM OPINION Plaintiff Olusegun Adelegan brought this suit against the District of Columbia and its employees (collectively, Defendants), alleging denial of due process and retaliation after the District of Columbia Public Schools (DCPS) placed him on administrative leave for criticizing DCPS employees during a Facebook livestream video.1 Defendants have moved to dismiss all of Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, seek summary judgment on his First Amendment retaliation claim. Because Plaintiff failed to exhaust administrative remedies required by law, the Court will GRANT the Government’s motion to dismiss his substantive and procedural due process claims.2 The Court will also GRANT the Government’s motion to dismiss Plaintiff’s First Amendment retaliation claim. 1 The DCPS employees that Plaintiff names as Defendants are: Melody Miller, officer of the Office of Labor Management and Employee Relations, Erin Pitts, deputy chief of Labor Management and Employee Relations, Crystal Jefferson, chief of the Office of Talent and Culture, Marshall Cartland, principal of Wheatley Education Campus, Gene Pinkard, Instructional Superintendent, John Davis, interim chancellor, Antwan Wilson, chancellor, Amanda Alexander, interim chancellor, and John Doe, deputy chancellor. ECF 24-2 ¶¶ 5–13. 2 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page. 1 I. BACKGROUND A. Factual History In the fall of 2016, Plaintiff was working for DCPS as a full-time instructional coach, i.e., a “teacher who helped other teachers with their instruction.” ECF 24-2 ¶ 16. He had previously worked at Wheatley Education Campus in northeast D.C. for the 2015–16 school year and returned for the 2016–17 school year. Id. ¶ 3. On November 3, 2016, Plaintiff went to his assigned school while recording a livestream video broadcasted on Facebook. Id. ¶ 17. While recording, Plaintiff alleges that he made statements “critical of his school’s disservice to its students, and of the role of its administrators and staff in that disservice.” Id. Specifically, Plaintiff posted an approximately twenty-four minute video on Facebook Live.3 He is visibly agitated and his statements are laced with profanity. The video begins with Plaintiff addressing one of his former students, saying “Oh they not ready for this but we got this s*** on Facebook Live. I picked up my young boy off the street, [name]. [Name], say hello to Facebook. F*** them all though. They don’t give a f*** about you, [name]. They don’t give a f*** about me. All right? Because if they gave a f*** about [name], they would have done better by [name] when he went to this school, but they didn’t. They ain’t do right by all these kids.” Defendants’ Exhibit B at 0:28–0:50. He criticizes the school because the students who he had in his class during his first year of teaching were not scoring proficiently on standardized testing and credits himself with improving their performance. Id. at 1:00–1:30. He then says, “open up the f****** door, Wheatley Education Campus, before I get crazy.” Id. at 1:30–1:36. 3 Defendants submitted the video as an exhibit to the Court. ECF 27-1 at 1 (describing “Exhibit B” as a “Video Recording of Facebook Live Broadcast Record”). The video and a transcript of the video were both filed under seal to protect the identities of the children involved. Id. at 2. The Court discusses the content of Plaintiff’s speech in this unsealed opinion but does not name or identify any of the children. 2  After complaining about not being let into the school, he says, “I just want all the kids that I used to teach, come up to the school right now. If I used to teach you, . . . come to the school. Because we ‘bout to expose everything that goes on at Wheatley and we’re going to change this s*** for the better.” Id. at 1:50–2:09. He complains more about the school not opening the door: “They don’t even want to open up the door for me. That’s f***** up. I done put five years into this m************ school and I’m not a crazy dude. I’m not even about to wild out, I’m just about to tell the truth.” Id. at 2:11–2:24. He calls out to his former student again: “[Name], you see this fake s***?” Id. at 2:25–2:27. He expresses concern that someone will call the police and says “the police already don’t like me right now,” id. at 2:35–2:38, and threatens to “call the news up here,” id. at 3:16–3:17. He names people who work at the school and says “y’all won’t face me as men.” Id. at 3:30–3:35. He repeatedly calls out to the kids he used to teach: “All my kids come up to the m************ school, we turning up.” Id. at 4:30–4:33. Plaintiff then leaves the school and gets back in his car. Id. at 5:34–5:37. He starts driving, id. at 6:20, while saying, “f*** everybody who ruins kids’ lives,” id. at 6:22–6:23. While driving around, he says, “I’m not a mad man, I’m speaking the truth. I don’t have no strap on me, and even if I did . . . .” Id. at 6:45–6:56. He then trails off and asks someone outside the car, “why’s the school on a lockdown?” Id. at 6:56–6:57. He again says, “all my old kids, come to Wheatley.” Id. at 7:26–7:28. He starts talking to some kids who get in the car. “Hey, what up? . . . Get your a**** in the backseat, I’m dropping y’all off.” Id. at 7:53–8:02. He appears to acknowledge that the school might be locked down because of him: “I think the school is on a lockdown or something. I thought it was because of me, but it might not be. There might be something else going on.” Id. at 8:17–8:24. 3  He then returns to talking to his Facebook Live audience and says “back in the back I got two students.” Id. at 8:38–8:42. He clarifies that they were not his students, but “my girl’s old students . . . they was in third grade in 2012, so I’ve known them for a very long time. You know what, Wheatley’s failed them too even though they left Wheatley.” Id. at 8:47–9:00. He asks the students to go home and “let your mom or whoever know, I need y’all to let them know everything about what goes on at Wheatley, all the s*** that goes on.” Id. at 9:17–9:25. He then says “we gon change the school, we gon change the principal, either I’m going to be the principal or they’re going to bring a new principal. Mr. Cartland ain’t gonna be principal no more. He don’t know how to handle y’all. I know how to handle y’all.” Id. at 9:29–9:38. He then tells the girls that “I love you all from the bottom of my heart.” Id. at 9:40–9:42. Off camera, the girls appear to exit the vehicle. Id. at 10:02–10:06. He then starts talking to a student out of his car window, saying “I’m sorry I quit on you all. I can’t do it anymore, man. It’s just a terrible school. Man, you know Scott Cartland ain’t doing what he got to do for y’all. So what y’all going to do? Y’all going to go home and just tell your parents everything real that’s going on in this school.” Id. at 10:32–10:44. He tells the students, “at the end of the day, I’m about y’all learning. I’m not coming back until Mr. Cartland is gone.” Id. at 11:53–11:57. After a student drew a penis on his window, he says, “I’ve never been happier to see a penis,” id. at 12:19–12:20, but proceeds to tell the child to “erase that penis you drew on my window before I beat you like you stole something,” id. at 12:30–12:37. He then says, “I got four of my students. I need more of my students to come.” Id. at 13:23–13:26. Plaintiff starts driving around the school again, where he encounters a police officer and says “we need to report something that’s going on at Wheatley.” Id. at 14:25–14:27. The officer asks him to pull over, id. at 14:28–14:29, and he refuses, saying he has to go to another school and 4 that he works for the D.C. government. Id. at 14:29–14:35. He tells the officer, “Look, there was a rape that went on last year that wasn’t reported to the proper authorities. Scott Cartland knows about it. There’s a gentleman in there who is guilty of the crime with an eighth-grade student. They know about it. I told him yesterday he had until 3:30 to expose it because it’s been eating at my soul and I’ve been so patient but so upset.” Id. at 14:35–14:55. The officer asks if Plaintiff worked at the school and Plaintiff says he “used to” but quit the day before. Id. at 14:56–14:59. The officer asks if he can pull over to give her more information, but Plaintiff says he’ll “talk to [her] later” and he doesn’t feel well. Id. at 15:06–15:15. The officer says that if he is going over to Browne (another D.C. school that Plaintiff indicated he was heading to), she can meet him over there, and Plaintiff agrees. Id. at 15:54–16:06. After he drives away from the police officer, Plaintiff says, “The cops f****** with me because I told the truth. I ain’t no b**** and I ain’t called a snitcher.” Id. at 16:18–16:24. He then says, “I’m all about protecting young lives.” Id. at 16:32–16:34. He speculates some more about why there’s a lockdown at Wheatley and complains about his treatment by cops and the Black Lives Matter movement. Id. at 17:58–19:03. He says that, if nobody cares, he should be “hitting . . . up” students as well, giving them his number or flirting with them. Id. at 19:06–19:25. He also resumes his rant against the school leadership. “If I’m a leader and I know about that, right? I ain’t doing nothing about that, right? I don’t call the popo, right? I don’t fire them, right? I see terrible shit going on in schools, I don’t lead the kids, right?” Id. at 19:27–19:43. He later says, “If we don’t protect these kids, we’ll fall for anything. There was a rape that happened at my school last year and my principal did not report it through the appropriate channels. Now I’m asking for his resignation. I’m sorry. I can’t live like this no more. He got to go.” Id. at 20:54–21:12. He then says “you can’t have no m************ white person leading Wheatley Education Campus while 5 Wheatley Education Campus is still f****** black, b******.” Id. at 21:28–21:39. He again reiterates that “Scott Cartland should be fired. He needs to resign because he allowed a rape to happen on Wheatley’s campus and he didn’t do s*** about it.” Id. at 22:00–22:06. Finally, Plaintiff gets out of his car and appears to be walking in a parking lot. An individual approaches Plaintiff, telling him to “turn around” and “walk.” Id. at 22:24–22:28. Plaintiff begins crying and the individual reassures him. Id. at 22:34–22:38. Plaintiff then says, “I’m so tired of all this shit, man. He raped the kids and they let him stay. He let him work there. He didn’t fire him. He didn’t report it to the police. They had to be quiet because they expect to be quiet. They are going to fire me too.” Id. at 23:11–23:24. Another individual—seemingly a police officer—tries to reassure him, but Plaintiff says, “My career is over. I did everything for these kids.” Id. at 23:25– 23:33; ECF 24-2 ¶ 24 (complaint stating that Plaintiff was met outside Browne by two police officers). The video ends with Plaintiff being accompanied by the police, saying, “I gave them my blood, I gave them my sweat, I gave them my tears. I’m done with education. I’m done with education.” Defendants’ Exhibit B at 23:36–23:45. According to the complaint, at this point, D.C. Metropolitan Police Department officers took Plaintiff against his will to the D.C. General Hospital, where he was “told he must undergo a psychological examination.” ECF 24-2 ¶¶ 21–24. Plaintiff was released shortly after because the psychiatric program at the hospital concluded that he was not mentally ill, deranged, or disturbed, and did not pose a threat to himself or others. Id. ¶ 26. That same day, Plaintiff received an email from Defendant Erin Pitts, deputy chief of the Office of Labor Management and Employee Relations at DCPS, informing him that he had been placed on administrative leave with pay. Id. ¶ 28. Prior to being permitted to return to work, one or more Defendants told Plaintiff that he would be required to complete a “fitness for duty examination.” Id. ¶ 29. Plaintiff attempted to do so on 6 January 3, 2017 by meeting with a mental health professional that DCPS’s contractor, Washington Occupational Health Associates (WOHA), assigned to him. Id. ¶ 34. During the appointment, a psychiatrist told Plaintiff that WOHA would forward DCPS the results of the examination. Id. From that appointment until April 20, 2017, Plaintiff had no contact with DCPS. Id. ¶ 35. Then, on April 20, Defendant Melody Miller, an officer of DCPS’s Office of Labor Management and Employee Relations, asked Plaintiff to “release his complete behavioral health records” including his “drug and alcohol screenings.” Id. Plaintiff hand-delivered the requested records to WOHA and informed DCPS that he “signed a release” to allow WOHA to contact his therapist. Id. ¶ 37. Following these communications, Plaintiff reached out to DCPS and WOHA on several occasions to inquire as to his next steps. Id. ¶¶ 38–43. In July 2017, Miller informed Plaintiff that “if he gave DCPS a letter from his treating doctor . . . stating that he was fit for duty, DCPS would find it acceptable.” Id. ¶ 43. Plaintiff attempted to obtain that letter during July and August 2017 but encountered various delays, including procuring a “fitness for duty” form from DCPS and transmitting a release form between his psychiatrist and WOHA. Id. ¶¶ 44–53. On September 1, 2017, Plaintiff did not receive his direct deposit as scheduled. Id. ¶ 54. Plaintiff “was not told that he had been terminated, or that an investigation of him had occurred or had concluded.” Id. Throughout September, Plaintiff attempted to contact WOHA and Ms. Miller but did not receive any response. Id. ¶ 59. On November 6, 2017, “one or more of the DCPS defendants” asked Plaintiff to complete another fitness for duty examination. Id. ¶ 60. Plaintiff did so on November 22, 2017. Id. ¶ 62. During this appointment, the WOHA physician asked Plaintiff whether he was “using illegal substances.” Id. ¶ 63. Plaintiff denied doing so but the WOHA physician said she had spoken with his other doctor and “that he should answer the question truthfully in order to return to work.” Id. ¶¶ 63–64. Plaintiff “understood then that he was expected 7 to tell WOHA that he had smoked marijuana in the past” because he had reported his past usage to his other doctor. Id. ¶ 65. The WOHA physician then asked Plaintiff to take a drug test and told him that if he failed, he would receive a call, but, if he passed, the results would be forwarded to DCPS. Id. ¶ 68. After taking the drug test, Plaintiff did not receive word of his results from either WOHA or DCPS. Id. ¶¶ 69–71. On January 22, 2018, DCPS sent Plaintiff a “Last Chance Agreement” which provided conditions of “rehire,” including another drug test and another medical release form. Id. ¶ 72. Plaintiff complied with the request for another drug test but contacted his union prior to signing the “Last Chance Agreement.” Id. ¶ 75. After consulting with his union, Plaintiff decided not to sign the agreement and informed DCPS promptly. Id. ¶ 77. That was the last communication Plaintiff had with DCPS in that matter. Id. ¶ 78. Plaintiff contends that he remains “unpaid” for the period that he was on leave after September 1, 2017 despite “not [being] formally terminated” by DCPS. Id. ¶¶ 79–80. Without resolving his dispute with DCPS about his employment at Wheatley, Plaintiff accepted an offer for a teaching position at Burrville Elementary School, another DCPS school, for the fall of 2018. Id. B. Procedural History The operative complaint represents Plaintiff’s second attempt to amend his claims and allegations following Defendants’ motions to dismiss. ECF 24-2. Plaintiff’s second amended complaint states three causes of action. The complaint alleges that Defendants (1) retaliated against Plaintiff in violation of the First Amendment; (2) denied him substantive due process in violation of the Fifth Amendment; and (3) denied him procedural due process in violation of the Fifth Amendment. Id. ¶¶ 99–126. Defendants have moved to dismiss Plaintiff’s second amended 8 complaint in its entirety, or in the alternative, for summary judgment on Plaintiff’s First Amendment retaliation claim. ECF 26. II. LEGAL STANDARD Defendants moved for dismissal of all claims under Rule 12(b)(6), and the Court grants the motion on that basis. Under Rule 12(b)(6), a complaint must allege facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court must “treat the complaint’s factual allegations as true” and afford the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). “In deciding a motion to dismiss, a court may . . . consider documents attached to or incorporated in the complaint,” He Depu v. Yahoo! Inc., 950 F.3d 897, 901 (D.C. Cir. 2020), as well as “documents upon which the plaintiff’s complaint necessarily relies[,] produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss,” Munro v. LaHood, 839 F. Supp. 2d 354, 359 (D.D.C. 2012). III. ANALYSIS Plaintiff brings three claims in his section 1983 suit: (1) First Amendment retaliation, (2) substantive due process, and (3) procedural due process. ECF 24-2 ¶¶ 99–126. Relevant to this opinion, Defendants assert two grounds for dismissal.4 First, Defendants contend Plaintiff failed to exhaust his administrative remedies for all claims, which they suggest both divests the Court of subject matter jurisdiction and constitutes a failure to sufficiently plead the cause of action. 4 Defendants also raise grounds for dismissal that the Court does not reach in this opinion, including moving to dismiss Plaintiff’s claim against the District of Columbia because Plaintiff has not pled a viable Monell claim, id. at 17–23, moving to dismiss Plaintiff’s due process claims for failure to state a claim, id. at 23–29, and asserting qualified immunity on behalf of Defendant Melody Miller, id. at 38–41. 9 ECF 26-1 at 6–16. In the alternative, Defendants have asked the Court to dismiss or enter summary judgment in their favor on Plaintiff’s First Amendment claim.5 Id. at 30–37. Finding it has subject matter jurisdiction over the claims, the Court considers Defendants’ motion under Rule 12(b)(6). Because Plaintiff was required to plead administrative exhaustion as a prerequisite to bringing his due process claims and did not do so, the Court grants Defendants’ motion to dismiss those claims. The Court finds that Plaintiff was not required to exhaust his First Amendment claim, but determines that he has separately failed to state that claim on the merits and also dismisses that claim. 5 The Court understands Defendants as moving to dismiss Plaintiff’s First Amendment claim for failure to state a claim and, in the alternative, for summary judgment. ECF 26-1 at 3–4 (“Point IV establishes, based on Plaintiff’s Facebook Live broadcast, that no reasonable jury could find that Plaintiff engaged in speech protected by the First Amendment, or that the District’s actions against Plaintiff were made in retaliation for protected speech. Therefore, even if Plaintiff had pleaded viable constitutional claims under Iqbal and Twombly, these claims are ripe for summary judgment.”). Plaintiff, however, appears to recognize that the Court could consider the video as “part and parcel of the complaint” at the motion to dismiss stage, making it unnecessary to convert Defendants’ motion to one for summary judgment. See ECF 29 at 12 (citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)). The Court sees no need to convert Defendants’ motion to dismiss into a motion for summary judgment in assessing the First Amendment claim. At the motion to dismiss stage, the Court can consider, in addition to “the facts alleged in the complaint,” any “documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff’s complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” In re Domestic Airline Travel Antitrust Litig., 221 F. Supp. 3d 46, 54 (D.D.C. 2016). Plaintiff alleges that he “recorded and posted a Facebook livestream video that was critical of his school’s disservice to its students, and of the role of its administrators and staff in that disservice.” ECF 24-2 ¶ 17. The contents of that speech, then, are at the very heart of his complaint and are incorporated by reference therein. The Court will therefore construe Defendants’ motion as a motion to dismiss Plaintiff’s First Amendment claim under Federal Rule of Civil Procedure 12(b)(6) and apply that standard. The Court notes that even if it considered Plaintiff’s claim under a summary judgment standard, it would reach the same result because Plaintiff cannot show his First Amendment rights were violated for the reasons the Court will explain later. See infra Section III.B; Sanders v. District of Columbia, 85 F. Supp. 3d 523, 534 (D.D.C. 2015) (granting summary judgment to defendants where plaintiff’s speech was part of “reporting conduct that interfered with his job responsibilities” and “therefore was unprotected by the First Amendment”). Referring to the transcript, Plaintiff suggests that Defendants “quote selectively from” the video and “introduce interpretations of fact,” ECF 29 at 12. But Plaintiff acknowledges the authenticity of the video exhibit submitted. Although the transcript Defendants submit with their briefing is a useful aid, the Court can ascertain the content of Plaintiff’s speech from the video itself. The Court only considers Plaintiff’s words and does not draw inferences or interpret his statements beyond the words that he utters. Accordingly, the Court finds it appropriate to consider the video in connection with Defendants’ motion to dismiss without considering Defendants’ alternative request for summary judgment. 10  A. Administrative Exhaustion Defendants argue Plaintiff’s suit requires exhaustion of the administrative remedies made available to Plaintiff under the District’s Comprehensive Merit Personnel Act (CMPA) and that Plaintiff’s failure to exhaust bars his claims.6 ECF 26-1 at 3 (stating that “Plaintiff failed to exhaust his administrative remedies, which defeats his three claims”). Plaintiff responds that the CMPA presents no jurisdictional barrier to suit in federal court, and thus the Court has discretion to consider his claims. ECF 29 at 1–3. The Court begins by finding that the CMPA exhaustion requirement applies to both of Plaintiff’s due process claims, but not his First Amendment claim. And for those claims subject to the exhaustion requirement, although it is nonjurisdictional, Plaintiff was nonetheless required to plead that he had exhausted his administrative remedies before filing suit in federal court. Because Plaintiff has not done so, and he has failed to demonstrate that exhaustion would have been futile, the Court finds that Plaintiff has failed to state his due process claims and dismisses them accordingly. 1. Overview of the CMPA When the D.C. Council enacted the CMPA, D.C. Code § 1–601.01 et seq., it intended to create a “uniform system of merit personnel administration that would replace a disjointed, decentralized, and inefficient federal framework.” Amobi v. Brown, No. 08-cv-1501, 2021 WL 3722710, at *4 (D.D.C. Aug. 23, 2021); see D.C. Code § 1–601.02(a)(2) (describing the creation of “uniform systems for personnel administration among the executive departments and agencies” 6 Defendants’ motion to dismiss states that “all three” of Plaintiff’s claims are “preempted by the CMPA,” but in reply, Defendants appear to suggest that only Plaintiff’s due process claims should be dismissed for failure to exhaust. Compare ECF 26-1 at 9, with ECF 30 at 2 (“Plaintiff’s due process claims (Counts II and III) should also be dismissed because Plaintiff failed to exhaust his administrative remedies.”). Because their initial motion to dismiss contains language that suggests they are seeking to dismiss all three claims for failure to exhaust, including the First Amendment claim, the Court briefly explains below why it rejects that argument as to Plaintiff’s First Amendment claim. See infra Section III.A.2. 11 in the District government). The CMPA “provides a remedy for the majority of employment related conflicts that occur between the District of Columbia and its employees” and covers employee complaints “arising out of employer conduct in handling personnel ratings, employee grievances, and adverse actions.” Greer v. Bd. of Tr. of Univ. of Dist. of Columbia, 734 F. Supp. 3d 75, 80 (D.D.C. 2024). With limited exceptions, the D.C. Court of Appeals has recognized the CMPA as the “exclusive remedy for a District of Columbia public employee who has a work- related complaint of any kind.” Robinson v. District of Columbia, 748 A.2d 409, 411 (D.C. 2000); see also District of Columbia v. Thompson, 593 A.2d 621, 635 (D.C. 1991) (same). Employees of the D.C. public schools, like Plaintiff, are subject to the CMPA, which Plaintiff has not disputed. See ECF 29 (no legal argument on this point); see also D.C. Code § 1–602.01(a) (CMPA applies to “all employees of the District of Columbia government” with very limited exceptions); Dickerson v. District of Columbia, 806 F. Supp. 2d 116, 121 (D.D.C. 2011) (finding the CMPA applied to DCPS employees); Grivnow v. Bowser, No. 20-cv-2000, 2022 WL 4130838, at *1, 3–4 (D.D.C. Sept. 12, 2022) (same). Under the CMPA, employees can challenge “any matter under the control of the District government which impairs or adversely affects the interest, concern, or welfare of employees” by filing a grievance, D.C. Code § 1–603.01(10); see also id. § 1–616.53, or they can contest an adverse action involving “removal, a reduction in grade, or suspension of 10 days or more” by filing an appeal with the D.C. Office of Employee Appeals (OEA), id. § 1–616.52(b). An employee may appeal to the OEA or use any grievance procedure set out in an applicable collective bargaining agreement (CBA), “but not both.” Id. § 1–616.52(e). If an employee chooses the applicable CBA grievance procedure, its provisions “take precedence over” the statutory procedure. Id. § 1–616.52(d). Depending on the employee’s chosen course of action, they are 12 statutorily authorized to seek judicial review by the D.C. Superior Court. An OEA decision is directly appealable to the D.C. Superior Court, id. § 1–606.03(d), while an arbitration award under a CBA grievance procedure is appealable to the Public Employees Relations Board, id. § 1– 605.02(6), and then to the D.C. Superior Court, id. §§ 1–605.02(12), 1–617.13(c); see also Thompson, 593 A.2d at 634 (noting that the CMPA contemplates a “reviewing role for the courts as a last resort, not a supplementary role for the courts as an alternative forum”). Plaintiff’s claims regard Defendants’ conduct in placing him on administrative leave starting in November 2016, which he characterizes in his complaint as “effectively a disciplinary suspension.” ECF 24-2 ¶¶ 28–30. After months of back and forth regarding the terms of his return to work, and his refusal to sign the “Last Chance Agreement,” Plaintiff alleges he was “de facto” terminated. Id. ¶¶ 75, 77. These claims concern alleged adverse actions that clearly fall under the CMPA’s scope. See D.C. Code § 1–606.03(a) (“An employee may appeal . . . an adverse action for cause that results in removal, . . . placement on enforced leave, or suspension for 10 days or more . . . to the Office [of Employee Appeals].”); see also Johnson v. District of Columbia, 552 F.3d 806, 807–08 (D.C. Cir. 2008) (affirming the district court’s dismissal where employee failed to exhaust CMPA’s administrative remedies for grievances related to being placed on administrative leave); Greer, 734 F. Supp. 3d at 82 (where a plaintiff’s claims related to the reasons for his termination, the court held they required administrative exhaustion under the CMPA). And finally, “[i]f there is any question as to whether the CMPA applies, the plaintiff is still required in the first instance to invoke the CMPA’s procedure because the determination whether the OEA has jurisdiction is quintessentially a decision for the OEA to make in the first instance.” Owens v. District of Columbia, 923 F. Supp. 2d 241, 249 (D.D.C. 2013). Because Plaintiff is covered by the CMPA and his claims involve adverse actions related to administrative leave and what he describes 13 as a de facto termination, he is required by D.C. law to exhaust his administrative remedies. D.C. Code § 1-616.52(b). 2. Plaintiff Was Not Required to Exhaust His First Amendment Claim But Must Exhaust His Constitutional Due Process Claims. Plaintiff contends that administrative exhaustion is not required because his three claims— First Amendment retaliation, substantive due process, and procedural due process—are constitutional and thus outside the scope of the CMPA. ECF 29 at 1–3. The Court finds that his constitutional due process claims are subject to the exhaustion requirement but agrees that he does not need to exhaust the CMPA’s administrative remedies to bring his First Amendment claim in this Court. In Patsy v. Board of Regents, the Supreme Court established a default rule that Congress did not intend for section 1983 claims involving constitutional rights to be initially addressed through state administrative procedures. 457 U.S. 496, 500–01 (1982) (“[E]xhaustion is not a prerequisite to an action under § 1983.”). But “when an alleged constitutional violation is intertwined with a statutory one, and [the legislature] has provided machinery for the resolution of the latter, the plaintiff must exhaust [his] administrative remedy before the district court may hear [his] case.” Nat’l Treasury Emps. Union v. King, 961 F.2d 240, 243 (D.C. Cir. 1992). This requirement applies “when the statutory and constitutional claims are premised on the same facts.” Id. While district courts have allowed, for example, “claims of workplace discrimination,” to proceed without CMPA exhaustion, Dickerson v. District of Columbia, 70 F. Supp. 3d 311, 320 (D.D.C. 2014), they have determined that allegations of due process violations based on a failure to follow termination procedures are statutory claims and require exhaustion under the CMPA, see, e.g., Washington v. District of Columbia, 538 F. Supp. 2d 269, 278 (D.D.C. 2008). 14  Here, Plaintiff’s due process claims “fall within the CMPA jurisdiction . . . [because] they are essentially state law claims that the plaintiff[] construed in a constitutional light so as to seek federal court jurisdiction.” Owens, 923 F. Supp. 2d at 248; McManus v. District of Columbia, 530 F. Supp. 2d 46, 79 (D.D.C. 2007) (noting that plaintiffs cannot “use a constitutional hook to reel their CMPA-precluded claims into” federal court). Plaintiff’s constitutional due process claims clearly fall under the CMPA bar. ECF 24-2 ¶¶ 108–26. His substantive due process claims allege that DCPS infringed upon his substantive rights in “requiring him to undergo unnecessary mental health examinations,” forcing him to “waive all physician-patient privilege as to all his private medical records,” and other actions Defendants took in terminating his employment. Id. ¶¶ 108– 17. He alleges that these actions “violated his substantive rights against deprivation of liberty and property without due process of law” under the Fifth Amendment. See, e.g., id. ¶ 113. His procedural due process claims rely on the same factual bases to allege that Defendants failed to provide him with the constitutional minimum of process that “they were required to afford him” under the applicable labor agreement and employee policies. See, e.g., id. ¶ 120. He also claims that he was deprived of his constitutionally protected property interest in his employment. Id. ¶ 87. But “[i]f a D.C. employee believes that he or she has been deprived of a property interest in continued employment without due process . . . that individual must exhaust all administrative remedies prior to filing suit in federal court.” Hoey v. District of Columbia, 540 F. Supp. 2d 218, 230 (2008). Plaintiff’s claims turn on his work-related gripes against the District—the District’s process for putting him on leave and the requirements they allegedly imposed on his return to work. The question of whether Plaintiff was provided adequate process, then, necessarily turns on a determination about what process the District is obligated to provide employees in his situation, including whether it was appropriate under the circumstances to give Plaintiff a “Last Chance 15 Agreement” or to require him to undergo a mental health evaluation. See ECF 24-2 ¶¶ 108–26 (Plaintiff’s allegations describing DCPS’s “wrongful conduct” in suspending his pay and terminating him). Because of the nature of these claims, the OEA has primary jurisdiction to resolve them. Washington, 538 F. Supp. 2d at 278–79; see D.C. Code § 1-616.52(b) (allowing appeals of “removal[s]” and “suspension[s] of 10 days or more” to be made to the OEA). Such “constitutional” claims must be remedied pursuant to the CMPA because they are “intertwined” with Plaintiff’s “remedies under the CMPA for termination,” Washington, 538 F. Supp. 2d at 277, given that they regard Defendants’ “conduct in handling . . . employee grievances[] and adverse actions,” Thompson, 593 A.2d 621 at 635, and because they challenge the “procedural safeguards” provided to District employees, Owens, 923 F. Supp. 2d at 251; see also Lucas v. U.S. Gov’t, 268 F.3d 1089, 1094 (D.C. Cir. 2001) (stating that litigants “cannot avoid exhaustion requirements by raising garden-variety work-related grievances as statutory and constitutional claims”). If the Court were to rule on his claims, it would be “prejudg[ing] local procedural questions” that properly belong in the D.C. administrative process. Washington, 538 F. Supp. 2d at 277. Accordingly, the Court finds that the CMPA exhaustion requirement applies squarely to Plaintiff’s two due process claims. Next, applying the same rule, the Court rejects Defendants’ argument that administrative exhaustion bars Plaintiff’s First Amendment claim. Defendants have not plausibly articulated why Plaintiff’s First Amendment claim is a disguised statutory claim, as opposed to alleging a violation of a constitutional right. See, e.g., Am. Fed. of Gov’t Emps. v. District of Columbia, No. 05-cv- 472, 2005 WL 1017877, at *5 (D.D.C. May 2, 2005) (finding that plaintiff was not required to undergo CMPA exhaustion before bringing a First Amendment claim for viewpoint discrimination). Defendants cite cases involving exhaustion of First Amendment claims in other 16 statutory schemes, including Federal Labor Relations Authority proceedings, without explaining how such authority sheds light on the CMPA requirement. See Nat’l Treasury Emps. Union, 961 F.2d at 244 (holding that administrative exhaustion may still be required even where plaintiffs assert First Amendment injury). Unlike his other claims, Plaintiff’s First Amendment retaliation claim does not focus on contesting any of the procedures in the termination or suspension of his employment but challenges whether such actions took place because of his protected speech— which suggests that Patsy’s default rule that constitutional claims fall outside of the state administrative process applies. Without making explicit holdings about the interaction between the First Amendment and the CMPA, other courts in this district have addressed employees’ First Amendment claims on the merits, while dismissing due process claims for failure to exhaust under the CMPA. Sanders v. District of Columbia, 85 F. Supp. 3d 523, 532–33, 537–38 (D.D.C. 2015) (dismissing procedural due process claim for failure to exhaust under the CMPA while evaluating plaintiff’s First Amendment retaliation claims under a summary judgment standard); Alexis v. District of Columbia, 44 F. Supp. 2d 331, 343, 346–47 (D.D.C. 1999) (noting that a plaintiff “was obligated to obtain an OEA Final Decision on his due process claim before seeking judicial relief,” while addressing another plaintiff’s First Amendment retaliation claim on the merits). The Court adopts the same approach here and addresses Plaintiff’s First Amendment claim on the merits below. See infra Section III.B. 3. Plaintiff Failed to Plead Exhaustion as an Element of His Due Process Claims Having established that Plaintiff was required to exhaust administrative remedies under the CMPA for his due process claims, the Court now examines Defendants’ argument that this exhaustion requirement is jurisdictional in this Court and concludes that it is not. Cf. ECF 26-1 at 16 (asking the Court to dismiss “for lack of subject matter jurisdiction”). Nonetheless, the Court 17 finds that Plaintiff was required to plead exhaustion in bringing his due process claims in federal court given that this case involves claims that fall under the CMPA administrative scheme. Courts in this jurisdiction have distinguished between two types of exhaustion requirements. First, nonjurisdictional exhaustion is a “judicially created doctrine requiring parties who seek to challenge agency action to exhaust available administrative remedies before bringing their case to court.” Avocados Plus Inc. v. Veneman, 370 F.3d 12