Moran v. United States Capitol Police , 82 F. Supp. 3d 117 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
LUANNE LYNN MORAN, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-0801 (ABJ)
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UNITED STATES CAPITOL POLICE, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Luanne Lynn Moran brought this action against the United States Capitol Police
(“USCP”), alleging that defendant retaliated against her for engaging in protected activity in
violation of the Congressional Accountability Act of 1995, 2 U.S.C. § 1301, et seq. (“CAA”).
Defendant has moved for summary judgment. Def.’s Mot. for Summ. J. [Dkt. # 17] (“Def.’s
Mot.”); Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. [Dkt. # 17] (“Def.’s Mem.”). Since
defendant has advanced a legitimate, non-retaliatory reason for plaintiff’s termination, and
because plaintiff has failed to put forth sufficient evidence from which a reasonable juror could
determine that defendant’s proffered reason is pretextual, the Court will grant defendant’s
motion and dismiss the case.
BACKGROUND
I. Factual Background
The following facts are undisputed, except where noted. Plaintiff was employed as a
Special Agent (“SA”) with the USCP from October 1995 until her termination on October 19,
2011. Aff. of Luanne Lynn Moran, Ex. 1 to Pl.’s Opp. to Def.’s Mot. [Dkt. # 18-1] (“Moran
Aff.”) ¶ 2. Beginning in 1998 and through her termination, plaintiff served with the Dignitary
Protection Division. Id.A. Plaintiff’s Internal Complaints Against Defendant
In January of 2005, 1 plaintiff filed an administrative complaint with the Office of
Compliance, alleging that defendant discriminated against plaintiff on the basis of her gender
when it denied her request to transfer to the detail protecting the then-Speaker of the House,
Nancy Pelosi (“the Speaker”). Moran Aff. ¶ 4; Def.’s Mem. at 2. This complaint was eventually
settled, and plaintiff was assigned to the Speaker’s detail in 2007. Moran Aff. ¶¶ 4–5; Def.’s
Mem. at 2.
In August and November of 2008, plaintiff filed two separate administrative complaints
with defendant’s Office of Professional Responsibility (“OPR”). Moran Aff. ¶¶ 9–10, 28. The
first alleged that plaintiff had been told by coworkers that Supervisory Special Agent (“SSA”)
Dorman Simmons had made sexually inappropriate comments to and about other female
employees. Id. ¶ 10. Plaintiff was not present for any of these comments, and none were
directed at her. Id. ¶¶ 9–10; Def.’s Mem. at 3. Plaintiff’s second complaint claimed that
defendant’s employees, including SSA Simmons, were retaliating against plaintiff for filing the
August complaint against SSA Simmons. Moran Aff. ¶ 28.
1 In a prior related case, plaintiff attested that she filed this charge in 2005. See Decl. of
Luanne L. Moran, Ex. 1 to Pl.’s Opp. to Def.’s Mot. for Summ. J., No. 09-1819 [Dkt. # 35-1]
¶ 2. Defendant also places this complaint in January of 2005, see Def.’s Mem. at 2, as did this
Court in that prior case. See Moran v. U.S. Capitol Police Bd., 887 F. Supp. 2d 23, 27 (D.D.C.
2012). However, plaintiff’s affidavit in this case states that her complaint was filed in January of
2006. Moran Aff. ¶ 4. The Court finds that whether plaintiff brought this complaint in 2005 or
2006 is not a material fact, and will therefore refer to this date as 2005.
2
B. Defendant’s Investigation of Plaintiff
On August 16, 2008, plaintiff’s coworker SA Dana M. Susak filed a complaint with SSA
Raymond L. Stonestreet – one of plaintiff’s supervisors – alleging that plaintiff had referred to
SA Susak as “trash,” told her to “get the f*** away from [plaintiff’s] truck” while on a protective
detail in Washington, D.C., and suggested on a separate occasion while on a protective detail in
Napa, California that SA Susak should be shot with a BB gun. 2 USCP Report of Investigation –
Truthfulness, Ex. 1 to Def.’s Mot [Dkt. # 17-1] (“Truthfulness Investigation Rep.”) at 2–3; Email
from Dana M. Susak to Raymond L. Stonestreet (Aug. 16, 2008), Attach. 4 to Truthfulness
Investigation Rep. [Dkt. # 17-1] at 1; see also Moran Aff. ¶¶ 18–19. SSA Stonestreet was
present when plaintiff referred to SA Susak as “trash,” but he was not present for the other
incidents. Memorandum from SSA Raymond L. Stonestreet, Attach. 5 to Truthfulness
Investigation Rep. [Dkt. # 17-1] at 1; Moran Aff. ¶ 18.
On September 4, 2008, SSA Stonestreet began a formal investigation based on SA
Susak’s allegations, and on October 28, 2008, he interviewed plaintiff in connection with the
investigation. Truthfulness Investigation Rep. at 1–2; Moran Aff. ¶¶ 17–19. SSA John A.
DeWolfe was also present for the interview. Truthfulness Investigation Rep. at 1; Moran Aff.
¶ 18. Prior to the interview, plaintiff reviewed and signed Form 1009, “Rights and
Responsibilities Relative to Administrative Investigations,” which states that USCP employees
“are compelled to truthfully and fully answer all questions posed by a supervisor” during an
investigation. Truthfulness Investigation Rep. at 1; Moran Aff. ¶ 18; USCP CP-1009, “Rights
2 SA Susak’s grievance was only one in a series of complaints lodged against plaintiff by
her fellow employees for disrespectful or offensive behavior. See Moran, 887 F. Supp. 2d at 27–
28 (summarizing four separate allegations of misconduct for which plaintiff was investigated and
disciplined in 2008). While those incidents also contributed to the initiation of the investigations
into plaintiff’s conduct, they are not material to plaintiff’s retaliation claim here.
3
and Responsibilities Relative to Administrative Investigations,” Attach. 11 to Truthfulness
Investigation Rep. [Dkt. # 17-1].
During the interview, SSA Stonestreet questioned plaintiff about the incidents involving
SA Susak. The interview was not transcribed, and the parties differ as to the exact phrasing of
the questions posed to plaintiff and the content of her answers. According to defendant, plaintiff
was asked directly whether she used profanity toward SA Susak while on a protective detail in
Washington, D.C. and whether she stated while on a protective detail in Napa, California that SA
Susak “should be shot with a BB gun,” and plaintiff specifically denied both allegations. Def.’s
Mem. at 6; see also Truthfulness Investigation Rep. at 1 (stating that plaintiff “denied both
allegations” that she directed profanity at SA Susak and that she stated that SA Susak should be
shot with a BB gun). Defendant points to contemporaneous accounts in support of its rendition
of events. See Interview Notes of SSA DeWolfe, Attach. 10 to Truthfulness Investigation Rep.
[Dkt. # 17-1] (“DeWolfe Notes”) (noting that plaintiff stated that she “would not use profanity
towards SA Susak” and that she “denied making the threatening statement involving the BB
gun”); Interview Notes of SSA Stonestreet, Attach. 12 to Truthfulness Investigation Rep. [Dkt.
# 17-1] (“Stonestreet Notes”) (stating that, regarding use of profanity, plaintiff said she “[d]idn’t
say it” and would “not curse [at] her” and that regarding the BB gun comment, plaintiff stated
that “she didn’t say” it).
However, in her affidavit in opposition to defendant’s motion for summary judgment,
plaintiff describes the interview differently, and she insists that when she spoke to SSA
Stonestreet in October 2008, she truthfully admitted calling SA Susak trash, she admitted
directing profanity at SA Susak, and she answered simply that she did not recall when asked
about the BB gun remark. Moran Aff. ¶¶ 18–19.
4
After his meeting with plaintiff, SSA Stonestreet interviewed and took written statements
from coworkers who witnessed the incidents in question or discussed them immediately
afterwards with plaintiff. Truthfulness Investigation Rep. at 1. These interviews corroborated
SA Susak’s claims. See Attachs. 2, 5, 7–9 to Truthfulness Investigation Rep. [Dkt. # 17-1]. At
the conclusion of the investigation, SSA Stonestreet determined that plaintiff had made the
comments in question and had violated the Rules of Conduct for Courtesy and Conduct
Unbecoming of a USCP officer. See USCP Report of Investigation – Courtesy and Conduct
Unbecoming, Attach. 1 to Truthfulness Investigation Rep. [Dkt. # 17-1] at 12–13. SSA
Stonestreet also undertook a review of plaintiff’s veracity during the interview, and he drafted a
report of investigation relating to plaintiff’s truthfulness. Def.’s Mem. at 7 n.4; see also Draft
USCP Report of Investigation – Truthfulness, Attach. 2 to Truthfulness Investigation Rep. [Dkt.
# 17-1] (“SSA Stonestreet Truthfulness Investigation Draft Rep.”) at 2.
Plaintiff was disciplined for the courtesy and conduct violations, and she appealed the
decision to USCP Chief Phillip D. Morse in December 2008. See Memorandum of Appeal,
Attach. 3 to Truthfulness Investigation Rep. [Dkt. # 17-1]. In her appeal, plaintiff recounted an
incident where, in her words, she had told SA Susak “to get the f*** out of my vehicle,” and she
acknowledged that she “did call Dana [Susak] trash.” Id. at 4. Chief Morse noted that plaintiff’s
appeal letter contradicted the testimony she reportedly provided during the Stonestreet interview,
and he forwarded the case to OPR for an investigation into whether plaintiff had made untruthful
statements during the official administrative investigation into her conduct. Decl. of Phillip D.
Morse, Ex. 2 to Def.’s Mot [Dkt. # 17-2] (“Morse Decl.”) ¶¶ 4–6. In March 2009, plaintiff was
placed on administrative leave as a result of the pending untruthfulness charge. Moran Aff. ¶ 32.
5
In response to Chief Morse’s referral, OPR Investigator Sergeant Shawn Huycke
reviewed SSA Stonestreet’s draft report, the notes of the interview taken by SSA Stonestreet and
SSA DeWolfe, and the testimony of several witnesses, and he issued a report in April 2009.
Truthfulness Investigation Rep. at 4. Investigator Huycke found that plaintiff told SSA
Stonestreet that she had not made a comment about shooting SA Susak with a BB gun, but that
two witnesses and SA Susak herself testified that plaintiff did make the statement. Id. at 3.
Further, Investigator Huycke found that while plaintiff denied directing profanity at SA Susak
during the Stonestreet interview, two witnesses confirmed that plaintiff had used profanity, and
plaintiff herself subsequently acknowledged in her appeal to Officer Morse that she had cursed at
SA Susak. Id. As a result, he determined by a preponderance of the evidence that plaintiff had
committed a truthfulness violation by making false statements during the October 2008
interview. Id. Investigator Huycke has testified that he was not “told,” “directed,” or
“instructed” by anyone to conclude that plaintiff had been untruthful, and that he was not
“consulted by management officials who recommended that [he] so conclude.” Dep. of Shawn
K. Huycke, Feb. 23, 2011, Ex. 7 to Def.’s Mot. [Dkt. # 17-7] at 157:5–22.
OPR then forwarded plaintiff’s case to Scharon L. Ball, the USCP Disciplinary Review
Officer (“DRO”), for a penalty recommendation as to the truthfulness violation. Memorandum
re: Review of OPR-09-039 (Special Agent Luanne Moran), Attach. 2 to Morse Decl. [Dkt. # 17-
2] (“Ball Mem.”) at 1. In a June 9, 2009 memorandum, DRO Ball noted that “[t]he USCP Draft
Penalty Table recommends termination of employment for a first violation” of truthfulness, and
that in “recent cases involving violations of this rule . . . each violating employee
received . . . termination of employment.” Id. at 3. Although DRO Ball found that plaintiff’s
thirteen years of employment with defendant and her previous positive performance evaluations
6
were “mitigating factor[s],” she recommended that plaintiff’s employment be terminated in light
of “the egregious nature of her misconduct of making untruthful statements during a Department
investigation.” Id. at 3–4. DRO Ball’s termination recommendation was approved by plaintiff’s
Deputy Chief, Yancey Garner, on June 16, 2009. Morse Decl. ¶ 9; see also Ball Mem. at 1
(showing Deputy Chief Garner’s signature and the word “approved”).
In December 2009, plaintiff was given the opportunity to present her case before a four-
member panel of defendant’s Disciplinary Review Board (“DRB”). See USCP DRB Final
Findings and Recommendations, Attach. 3 to Morse Decl. [Dkt. # 17-2] (“DRB Findings”);
Moran Aff. ¶¶ 22–23. Plaintiff now states that her testimony before the DRB “was truthful” and
was consistent with the version of events set forth in her affidavit in opposition to the summary
judgment motion. Moran Aff. ¶ 23. In her affidavit, plaintiff maintains that she “consistently
stated . . . that [she] told SA Susak to ‘get the f*** out of the car’ and that [she] did not, and to
this day, do[es] not, recall threatening to shoot SA Susak with a BB gun.” Id. ¶ 24. The DRB
panel found plaintiff guilty of the truthfulness violation by a vote of three-to-one “[a]fter hearing
testimony, reviewing the evidence introduced concerning aggravating and mitigating
circumstances . . . and after examining [plaintiff’s] personnel file and comparing any applicable
penalties which have been assessed for similar infractions.” DRB Findings at 3–5. The DRB
panel recommended that plaintiff’s employment be terminated. Id. at 6.
On January 4, 2010, plaintiff appealed the DRB panel’s recommendation to Chief Morse,
asserting that she was truthful during the October 2008 interview, that SSA Stonestreet’s
investigation was biased, and that numerous mitigating circumstances warranted a penalty less
severe than termination. Letter from Matthew D. Estes re: Written Appeal of DRB Decision and
Penalty Assessment, Attach. 4 to Morse Decl. [Dkt. # 17-2]. On September 16, 2011, Chief
7
Morse denied the appeal, finding that plaintiff had failed to produce any evidence to controvert
the notes memorializing her answers during the interview or to show that the investigation was
biased or retaliatory. Letter from Phillip D. Morse re: Written Appeal of DRB Decision and
Penalty Assessment, Attach. 5 to Morse Decl. [Dkt. # 17-2] (“DRB Appeal Denial”). Chief
Morse also noted that plaintiff “has not taken responsibility for her actions even when provided
numerous opportunities to do so,” and that the untruthfulness charge was “a very serious matter.”
Id. at 3. Accordingly, Chief Morse approved the DRB’s recommendation of termination on
September 16, 2011. Id. at 4. He submitted the matter to the Capitol Police Board (“CPB”) 3 on
September 26, 2011, and the CPB unanimously concurred with the termination recommendation.
Memorandum re: Termination Recommendation for Luanne Moran, Attach. 6 to Morse Decl.
[Dkt. # 17-2] (“CPB Termination Mem.”). Plaintiff’s employment was terminated effective
October 19, 2011. Moran Aff. ¶ 2; Def.’s Mem. at 10.
II. Procedural History
Plaintiff has filed three separate suits before this Court stemming out of the series of
events described above. Plaintiff filed Civil Action 09-1819 (“Moran I”) in September 2009,
and amended her complaint in January 2010 to set forth six counts against defendant. See Am.
Compl., No. 09-1819 [Dkt. # 2]. Counts I and II alleged that defendant’s issuance of two
personal performance notes to plaintiff was retaliatory; Counts III and IV alleged that
defendant’s issuance of two command discipline citations to plaintiff was retaliatory; Count V
alleged that defendant’s suspension of plaintiff in March 2009 was retaliatory; and Count VI
alleged that defendant’s issuance of a third command discipline citation recommending
plaintiff’s termination was retaliatory. Id. The Court granted defendant’s motion to dismiss five
3 The Capitol Police Board is composed of the Sergeants at Arms for the U.S. House of
Representatives and the Senate, and the Architect of the Capitol. Morse Decl. ¶ 13.
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of the six counts, see Order (Oct. 27, 2011), No. 09-1819 [Dkt. # 29]; Mem. Op. (Oct. 27, 2011),
No. 09-1819 [Dkt. # 30], and it later granted defendant’s motion for summary judgment on the
remaining count because plaintiff failed to offer sufficient evidence from which a reasonable
juror could infer retaliation. See Order (Aug. 20, 2012), No. 09-1819 [Dkt. # 38]; Mem. Op.
(Aug. 20, 2012), No. 09-1819 [Dkt. # 39].
On May 17, 2012, while Moran I was still pending, plaintiff filed the one-count
complaint in Civil Action 12-801 (“Moran II”). Compl., No. 12-801 [Dkt. # 1] (“Moran II
Compl.”). Then, on September 20, 2012, plaintiff filed the one-count complaint in Civil Action
12-1561 (“Moran III”), repeating the same claim advanced in Moran II. Compl., No. 12-1561
[Dkt. # 1] (“Moran III Compl.”). Both complaints alleged that defendant “unlawfully retaliated
against Plaintiff for her engaging in protected activities, by, among other things, terminating
Plaintiff’s employment with USCP and engaging in a course of conduct with the purpose and
intent of terminating Plaintiff’s employment with USCP, based upon knowingly false charges.”
Moran II Compl. ¶ 69; Moran III Compl. ¶ 71. The Court consolidated Moran II and Moran III
on December 7, 2012. Minute Entry (Dec. 7, 2012). 4
4 Plaintiff argues that defendant’s summary judgment motion should be denied outright
because defendant did not file a separate answer to the Moran III complaint, and that “[t]he
alleged facts are therefore admitted and . . . give rise to claims of retaliation under the CAA.”
Pl.’s Opp. to Def.’s Mot. [Dkt. # 18] (“Pl.’s Opp.”) at 21–22. Plaintiff answered the Moran II
complaint, see Answer [Dkt. # 3], and on January 9, 2015, the Court ordered defendant to answer
the Moran III complaint, as well. Minute Order (Jan. 9, 2015). Defendant complied on January
15, 2015, see Answer to Compl. Originally Filed in Case No. 12-1561 [Dkt. # 24], thus curing
whatever defect may have existed in its responses to plaintiff’s claims. In any event, the Court
finds that even if defendant had failed to answer the Moran III complaint, the Moran II and
Moran III complaints are virtually indistinguishable, save for a few paragraphs relating to
plaintiff’s exhaustion of administrative remedies and the date of her termination. Compare
Moran II Compl. ¶¶ 8–11 with Moran III Compl. ¶¶ 8–12, 63. In consideration of this case’s
convoluted history and the near identity of the complaints, the Court finds that the harsh sanction
of denying defendant’s summary judgment motion on this ground would be unwarranted.
9
Defendant moved to dismiss the consolidated complaint on res judicata grounds. Def.’s
Mot. to Dismiss [Dkt. # 10]. During a hearing on the record, this Court granted the motion in
part, finding that insofar as plaintiff’s claim was based on defendant’s “course of conduct”
leading up to her termination, it was precluded by the Court’s summary judgment ruling in
Moran I. Minute Entry (Sept. 11, 2013); Tr. of Proceedings (Sept. 11, 2013) [Dkt. # 22] (“Mot.
to Dismiss Tr.”) at 10:17–13:18, 17:1–10. The Court left intact only the part of Count I that
alleged that plaintiff’s termination was retaliatory. Mot. to Dismiss Tr. at 13:19–17:10. After
discovery, in which plaintiff apparently declined to participate, 5 see Def.’s Mem. at 1 n.1,
defendant moved for summary judgment. Def.’s Mot.; Def.’s Mem.
STANDARD OF REVIEW
Summary judgment is appropriate “if 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). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non-moving party must “designate specific facts showing that there is a
genuine issue for trial.” Id. at 324 (internal quotation marks omitted). But the mere existence of
5 Defendant argues that, “[i]n light of Plaintiff’s failure to respond to [defendant’s]
discovery requests . . . and Plaintiff’s failure to notice even a single deposition since the Court
issued its discovery Scheduling Order,” the Court has the discretion to dismiss plaintiff’s case
sua sponte for failure to prosecute. Def.’s Mem. at 1 n.1, citing Fed. R. Civ. P. 41(b). Whatever
her reasons for failing to participate in discovery after defendant’s motion to dismiss was granted
in part, plaintiff has actively opposed defendant’s summary judgment motion. See generally
Pl.’s Opp. In light of that fact, and in the interest of resolving this case on the merits, the Court
declines to dismiss this case on that basis.
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a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find
for the non-moving party; a fact is “material” only if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).
In assessing a party’s motion, the court must “view the facts and draw reasonable
inferences ‘in the light most favorable to the party opposing the summary judgment motion.’”
Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (per curiam). The non-movant may not, however, rest upon the
allegations or denials in its pleadings, but must instead establish more than “[t]he mere existence
of a scintilla of evidence” in support of its position. Anderson, 477 U.S. at 252. A court will
“not accept bare conclusory allegations as fact.” Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir.
1997); see also District Intown Props Ltd. P’ship v. District of Columbia, 198 F.3d 874, 878
(D.C. Cir. 1999) (“[T]he court must assume the truth of all statements proffered by the non-
movant except for conclusory statements lacking any factual basis in the record.”).
ANALYSIS
The retaliation provision of the Congressional Accountability Act makes it unlawful for
an employer “to intimidate, take reprisal against, or otherwise discriminate against, any covered
employee” because she “has opposed any practice made unlawful by this chapter, or because the
covered employee has initiated proceedings, made a charge, or testified, assisted, or participated
in any manner in a hearing or other proceedings under this chapter.” 2 U.S.C. § 1317(a). “CAA
retaliation claims under 2 U.S.C. § 1317 are analyzed under the same standards as Title VII
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retaliation claims.” 6 Newton v. Office of the Architect of the Capitol, 905 F. Supp. 2d 88, 93
(D.D.C. 2012); see also 2 U.S.C. §§ 1302(a)(2), 1311(a)(1) (the CAA extends the protections of
Title VII to the legislative branch). Thus, courts in this Circuit apply the familiar three-part
McDonnell Douglas framework to CAA retaliation claims. Gordon v. Office of the Architect of
the Capitol, 928 F. Supp. 2d 196, 206 (D.D.C. 2013), citing Brady v. Office of the Sergeant at
Arms, 520 F.3d 490, 492–94 (D.C. Cir. 2008); see also Forman v. Small, 271 F.3d 285, 299
(D.C. Cir. 2001) (explaining the McDonnell Douglas framework).
Under McDonnell Douglas, “the plaintiff bears the initial burden of ‘establish[ing] a
prima facie case of . . . discrimination.’” Gordon, 928 F. Supp. 2d at 206, quoting McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the plaintiff succeeds, the burden then
shifts to the defendant to offer a “legitimate, nondiscriminatory reason” for the adverse
employment action. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (internal quotation
marks and citations omitted). “If the employer does so, ‘the burden-shifting framework
disappears, and a court reviewing summary judgment looks to whether a reasonable jury could
infer . . . retaliation from all the evidence.’” Id., quoting Carter v. George Washington Univ.,
387 F.3d 872, 878 (D.C. Cir. 2004).
To make out a prima facie case of retaliation, a plaintiff must demonstrate: “(1) that
[s]he engaged in statutorily protected activity; (2) that [s]he suffered a materially adverse action
by [her] employer; and (3) that a causal link connects the two.” Id., quoting Wiley v. Glassman,
511 F.3d 151, 155 (D.C. Cir. 2007). At the summary judgment stage, however, where the
employer has produced a legitimate, nondiscriminatory reason for its action, “‘the district court
need not – and should not – decide whether the plaintiff actually made out a prima facie case
6 For that reason, the Court will use the CAA and Title VII interchangeably in articulating
the legal standard in this case.
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under McDonnell Douglas.’” Id. at 678, quoting Brady, 520 F.3d at 494. Instead, the dispositive
question becomes whether the plaintiff produced evidence sufficient for a reasonable jury to find
that the employer’s stated reason was not the actual reason for the adverse action and that the
employer actually retaliated against the plaintiff. Brady, 520 F.3d at 495. In assessing this issue,
the court is to consider “‘all the evidence,’ which includes not only the prima facie case but also
the evidence the plaintiff offers to ‘attack the employer’s proffered explanation for its action and
other evidence of retaliation.’” Jones, 557 F.3d at 677, quoting Carter, 387 F.3d at 878.
I. Defendant has offered a legitimate, non-retaliatory reason for plaintiff’s
termination.
Because plaintiff’s retaliation claim reaches this Court at the summary judgment stage,
the Court will follow the framework outlined above and will examine the reason defendant has
given for plaintiff’s termination. Defendant states that it terminated plaintiff’s employment
because “[s]he made untruthful statements during an investigation into her conduct towards other
special agents.” Def.’s Mem. at 18. Specifically, defendant terminated plaintiff’s employment
in light of its determination that, during the October 2008 interview, plaintiff denied using
profanity toward SA Susak while on a protective detail in Washington, D.C., and denied stating
that SA Susak should be shot with a BB gun while on a protective detail in Napa, California, and
that those denials were untruthful. Truthfulness Investigation Rep. at 1, 3.
Upon review of plaintiff’s appeal, Chief Morse found that this untruthfulness was an
“egregious” infraction which “showed a disregard for [plaintiff’s] duties as a police officer.”
DRB Appeal Denial at 3. Further, the conduct violated Operational Directive, PRF 1.3 Rules of
Conduct, Category A: Duty to Obey, Rule A7: Truthfulness, which requires employees to
“make truthful statements at all times . . . pertaining to official duties or matters affecting the
Department” and “to cooperate fully and truthfully during Department Investigations.” Morse
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Decl. ¶ 7; USCP Operational Directive – Rules of Conduct, PRF 1.3, Attach. 1 to Morse Decl.
[Dkt. # 17-2] (“Operational Directive”) at 2. Any violation of that Operational Directive subjects
an employee “to such disciplinary action as deemed appropriate by the Chief of Police.”
Operational Directive at 1. The USCP Draft Penalty Table recommends termination of
employment for even a first violation, Ball Mem. at 3, and Chief Morse adopted that
recommendation, noting that “[b]eing untruthful in an investigation is a very serious
matter . . . for a law enforcement officer who is responsible for upholding the public trust.” DRB
Appeal Denial at 3–4.
The Court finds that the reason offered by defendant – its determination that plaintiff was
untruthful during an official investigation – would constitute a legitimate, non-retaliatory basis
for plaintiff’s termination, especially in light of defendant’s policies and the manner in which
similar cases have been handled by defendant. See Ball Mem. at 3 (noting that in recent cases
involving truthfulness violations, “each violating employee received . . . termination of
employment” as their penalty). Accordingly, the burden now shifts back to plaintiff to produce
evidence sufficient for a reasonable jury to find that her truthfulness violation was not the real
reason for her termination, and that instead, she was terminated in retaliation for the protected
conduct in which she engaged. Brady, 520 F.3d at 495; see also Musick v. Salazar, 839 F. Supp.
2d 86, 95 (D.D.C. 2012); Manuel v. Potter, 685 F. Supp. 2d 46, 62 (D.D.C. 2010).
II. Plaintiff has failed to put forth sufficient evidence from which a reasonable jury
could infer that plaintiff’s termination was in retaliation for her protected activity.
Once a defendant has offered a legitimate, non-retaliatory purpose for its action, the
dispositive inquiry is “whether the employee’s evidence creates a material dispute on the
ultimate issue of retaliation ‘either directly by [showing] that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer’s proffered explanation is
14
unworthy of credence.’” Jones, 557 F.3d at 678, quoting U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 716 (1983). In other words, a court must determine whether there is
“sufficient evidence for a reasonable jury to infer retaliation.” Id. at 679. The burden of proving
retaliation “‘remains at all times with the plaintiff.’” Thompson v. District of Columbia, 573 F.
Supp. 2d 64, 68 (D.D.C. 2008), quoting Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647,
651 (D.C. Cir. 2003).
An employee can create a material dispute on the issue of retaliation through a
combination of “(1) the plaintiff’s prima facie case; (2) any evidence the plaintiff presents to
attack the employer’s proffered explanation for its actions; and (3) any further evidence of
[retaliation] that may be available to the plaintiff . . . or any contrary evidence that may be
available to the employer.” Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir.
1998). Plaintiff has failed to carry her burden in any of these ways.
A. Plaintiff has failed to make out a prima facie case of retaliation because she
cannot show a causal connection between her protected activity and her
termination.
Defendant acknowledges that “[p]laintiff has established the first two elements of a prima
facie case of reprisal,” that is, that she engaged in protected activity and that she suffered an
adverse employment action. Def.’s Mem. at 14. However, defendant contends that plaintiff
cannot establish a causal connection between her prior protected activity and the decision to
terminate her employment in October 2011. Id. at 14–17.
“[T]he strength of the plaintiff’s prima facie case, especially the existence of a causal
connection, can be a significant factor in [a plaintiff’s] attempt to rebut the defendant’s
legitimate non-retaliatory reason for the adverse action.” Holmes-Martin v. Sebelius, 693 F.
Supp. 2d 141, 152 (D.D.C. 2010), citing Aka, 156 F.3d at 1289 n.4. But the inability to
15
demonstrate a causal connection can be sufficient to preclude that plaintiff from establishing
pretext at the summary judgment stage. Laurent v. Bureau of Rehab., Inc., 544 F. Supp. 2d 17,
23 n.5 (D.D.C. 2008) (finding that the plaintiff could not show that the legitimate reason for her
termination was a pretext for retaliation because she was “unable to show any causal connection
between her complaints about a fellow employee’s conduct and her dismissal”).
A plaintiff can establish causal connection “by showing that the employer had knowledge
of the employee’s protected activity, and that the adverse personnel action took place shortly
after that activity.” Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985). These requirements
are known as the “knowledge” and “timing” requirements. Timmons v. U.S. Capitol Police Bd.,
407 F. Supp. 2d 8, 12 (D.D.C. 2005). Defendant asserts that both are absent in this case. Def.’s
Mem. at 15–17.
1. The timing does not give rise to a prima facie case of retaliation.
To satisfy the timing requirement, the proximity between the protected activity and the
adverse employment action must be “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001) (internal quotation marks omitted). Some courts in this district have interpreted
that requirement to mean within approximately three to four months. See, e.g., Allen v.
Napolitano, 774 F. Supp. 2d 186, 201 n.2 (D.D.C. 2011) (“In the D.C. Circuit, courts have held
that alleged retaliatory acts must occur within three or four months of the protected activity to
establish causation by temporal proximity.”); Gustave-Schmidt v. Chao, 360 F. Supp. 2d 105,
118–19 (D.D.C. 2004) (explaining that an adverse action that occurred two days before the three-
month mark after the protected activity “pushe[d] the temporal requirement . . . to its outer
limit”). However it is quantified, the temporal proximity between the protected activity and a
16
plaintiff’s termination must be close enough to permit a reasonable jury to infer that the adverse
employment action was in retaliation for the plaintiff’s lawful and protected conduct.
Plaintiff identifies four protected activities at the heart of her retaliation claim: her
January 2005 complaint regarding the denial of her request to transfer to the Speaker’s detail,
Pl.’s Opp. at 2; her August 2008 complaint that SSA Simmons made sexually inappropriate
comments, id. at 3–4; her November 2008 complaint that defendant’s employees retaliated
against her for her complaint against SSA Simmons, id. at 14; and the September 2009 filing of
the complaint in Moran I, id. at 23, 25.
Here, plaintiff was terminated more than two years after the latest of her protected
activities: Chief Morse denied plaintiff’s appeal of the DRB’s penalty recommendation on
September 16, 2011, see DRB Appeal Denial; he recommended to the CPB that plaintiff’s
employment be terminated on September 26, 2011, CPB Termination Mem.; and the CPB then
approved Chief Morse’s recommendation and plaintiff’s termination took effect on October 19,
2011. Morse Decl. ¶ 14; Moran Aff. ¶ 2. This series of events is so far removed in time from
plaintiff’s protected activities that there is no basis from which a jury could infer a causal
connection. If “[a]ction taken . . . 20 months later suggests, by itself, no causality at all,”
Breeden, 532 U.S. at 274, then plaintiff’s termination more than two years after her last
identified protected activity gives rise to little or no inference whatsoever. Plaintiff has therefore
failed to put forth sufficient timing evidence to create a genuine dispute of material fact as to
causation.
2. Plaintiff has not demonstrated the knowledge on the part of the
decision maker needed to make out a prima facie case of retaliation.
To fulfill the knowledge requirement, the official responsible for ordering the employee’s
adverse employment action must have had knowledge of the protected activity. Laboy v.
17
O’Neill, No. 01-5322, 2002 WL 1050416, at *1 (D.C. Cir. Mar. 13, 2002), citing Breeden, 532
U.S. at 270–74; see also Buggs v. Powell, 293 F. Supp. 2d 150–51 (D.D.C. 2003) (finding that
plaintiff was unable to satisfy the knowledge requirement because “the record indicate[d] that the
selecting official was unaware of plaintiff’s prior protected activity”).
Plaintiff insists that several members of her chain of command – in particular, SSA
Stonestreet and Chief Morse 7 – knew about some or all of her protected activities. See Pl.’s Opp.
at 9–11, 23–25. Further, plaintiff contends that “each of [defendant’s] investigators and
decision-makers[] was well-aware of Moran’s protected activity” because SSA Stonestreet’s
draft truthfulness investigation report was included in her appeal file, and she had specifically
mentioned her complaint against SSA Simmons during the October 2008 interview. Id. at 10,
24–25; see also SSA Stonestreet Truthfulness Investigation Draft Rep. at 7 (noting that plaintiff
stated during the October 28, 2008 interview that “this investigation was witch hunt against her
because she filed a complaint against SSA Simmons”). But all this tends to show is that some of
the individuals involved in the investigatory and disciplinary process may have become generally
7 SSA Stonestreet was aware of plaintiff’s 2005 complaint and the 2007 settlement when
he initiated the investigations into plaintiff’s conduct. Dep. of Raymond L. Stonestreet (Feb. 18,
2011), Ex. 2 to Pl.’s Opp. [Dkt. # 18-2] at 12:16–13:4 (“I know [plaintiff] came over [to the
Speaker’s detail] as a result of a complaint.”). Additionally, there is some evidence in the record
that SSA Stonestreet knew about plaintiff’s August 2008 complaint against SSA Simmons, as
plaintiff asserts that she told SSA Stonestreet about it during a conversation on August 14, 2008.
Pl.’s Opp. at 5; Moran Aff. ¶ 16. But SSA Stonestreet only initiated the conduct and truthfulness
inquiries, see Truthfulness Investigation Rep. at 2–3, and had no further involvement in the
“course of conduct” leading up to plaintiff’s termination or the final CPB panel decision. Dep.
of Raymond L. Stonestreet, Feb. 18, 2011, Ex. 6 to Def.’s Mot. [Dkt. # 17–6] at 295:4–13,
297:11–14 (testifying that he was not involved in deciding what penalty to give plaintiff for the
truthfulness violation).
Chief Morse was aware that plaintiff “filed a complaint sometime in 2006 or 2007” at the
time he approved the recommendation that plaintiff be terminated, but did not recall the claims
or content of that complaint. Morse Decl. ¶ 15. But he did not make the final termination
decision, and, as discussed below, Chief Morse’s recommendation to the CPB panel did not
reference plaintiff’s protected activities in any way.
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aware that plaintiff had previously filed a complaint against SSA Simmons after plaintiff herself
made it part of the case file. See Moran Aff. ¶ 19; Pl.’s Opp. at 10. And this does not support
the inference that these actors had knowledge of her other protected activities based on the
review of her appeal file.
In order to ascertain whether an official responsible for an adverse employment action
had the requisite knowledge, one must first determine what the adverse employment action is,
and then, who was responsible for it. Plaintiff points to Chief Morse’s September 16, 2011
termination recommendation, but, as the Court explained in its September 11, 2013 ruling on the
motion to dismiss in this case, any claim based on that employment action was barred by the
previous judgment in Moran I. 8 So Morse’s knowledge is irrelevant.
The only issue remaining is whether the members of the CPB, who took the adverse
action of accepting Chief Morse’s termination recommendation, had knowledge of plaintiff’s
protected activities. See Mot. to Dismiss Tr. at 13:19–14:1, 14:16–15:2 (noting that “plaintiff’s
challenge to the actual termination of her employment” is not barred by res judicata because
8 The Court previously dismissed as barred by res judicata that part of plaintiff’s claim that
challenged defendant’s “course of conduct” leading up to her termination. Mot. to Dismiss Tr. at
11:24–12:4, 17:4–7. That course of conduct necessarily “encompasses some pre-termination
acts that were not a part of the claims in Moran I.” Id. at 12:10–13. But plaintiff had until
March 30, 2012 to amend the Moran I complaint to challenge any additional allegedly retaliatory
acts for which she had exhausted administrative remedies, and she never did so. Id. at 5:17–6:4.
Those acts include Chief Morse’s September 16, 2011 termination recommendation: plaintiff
appealed that decision on October 4, 2011, Compl. ¶¶ 61–62, and she acknowledges that she
exhausted her administrative remedies regarding Morse’s recommendation by February 2012,
well before the March 2012 amendment deadline. Id. ¶¶ 8–11. So, even if plaintiff has shown
that Chief Morse had some knowledge of her protected activities when he issued his termination
recommendation, a challenge to that decision as retaliatory is barred by this Court’s decision on
the motion to dismiss and the doctrine of res judicata. See Mot. to Dismiss Tr. at 12:17–22; see
also Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984) (“The doctrine of res judicata is
that ‘the parties . . . may not relitigate any ground for relief which they already have had an
opportunity to litigate – even if they chose not to exploit that opportunity.’”), quoting Hardison
v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981).
19
“plaintiff did not finish the administrative prerequisites to filing her suit challenging the
termination of her employment until August 6, 2012, which was well after the deadline for filing
a motion for leave to amend in Moran I”). But there, plaintiff has failed to carry her burden.
She offers no evidence whatsoever to show that the CPB members were aware of her protected
conduct, other than her unsupported and conclusory allegation that “each of the key personnel
knew of Moran’s protected activity through the investigation(s) and decision-making process.”
Pl.’s Opp. at 24. In fact, the record indicates that Chief Morse’s termination recommendation
memorandum to the CPB panel contained no reference to plaintiff’s earlier administrative
complaints or to the filing of the complaint in Moran I. See CPB Termination Mem. Plaintiff
has therefore failed to demonstrate that a genuine dispute of material fact exists as to whether the
CPB members – the individuals ultimately responsible for approving the termination – had the
knowledge of her protected activities that would be needed to imply causation.
In its ruling on defendant’s motion to dismiss, this Court cautioned the parties that they
needed to “engage in an honest assessment of whether the plaintiff is going to be able to meet her
burden to establish the causal connection between the protected activities and the adverse action
that is still standing” – namely the termination. Mot. to Dismiss Tr. at 17:10–15. After
reviewing the pleadings and the record evidence, the Court finds that plaintiff has failed to meet
that burden, and that the lack of evidence supporting a causal connection between her protected
activities and her termination renders plaintiff unable to establish that defendant’s stated reason
for her firing was pretextual.
20
B. Plaintiff has failed to produce evidence sufficient to attack defendant’s
proffered reason for her termination sufficient for a reasonable jury to infer
retaliation.
Since plaintiff cannot establish the necessary elements of a prima facie case of retaliation,
the Court must next determine whether plaintiff has presented any other evidence to disprove
defendant’s proffered reason for her termination. See Aka, 156 F.3d at 1289. Here, plaintiff
maintains that she did not in fact lie to SSA Stonestreet about her comments to and about SA
Susak, so she argues that there is a dispute of fact that must be submitted to a jury on the
question of the legitimacy of her termination. Pl.’s Opp. at 11–12, 28; see also Moran Aff.
¶¶ 18–19, 23–24.
The D.C. Circuit has observed that at this stage, it is common for an employee to
attempt to demonstrate that the employer is making up or lying about the
underlying facts that formed the predicate for the employment decision. If
the employer’s stated belief about the underlying facts is reasonable in
light of the evidence, however, there ordinarily is no basis for permitting a
jury to conclude that the employer is lying about the underlying facts.
Brady, 520 F.3d at 495.
In Brady, the plaintiff had been demoted after allegedly making a sexual gesture in front
of three other employees, and he sued, alleging that he was actually demoted because of his race.
Id. at 491. The district court granted summary judgment in favor of the employer, and the
plaintiff appealed, claiming that there was a material dispute about whether the incident actually
occurred, and that it was a jury’s responsibility to determine that fact. Id. at 495–96. The D.C.
Circuit upheld the district court’s findings, explaining that “[t]he question is not whether the
underlying sexual harassment incident occurred; rather, the issue is whether the employer
honestly and reasonably believed that the underlying sexual harassment incident occurred.” Id.
at 496. If an employee could defeat summary judgment simply by denying the underlying
21
activity for which he was disciplined, the court reasoned, an employee could effectively get to
trial in any case. Id. Instead, a plaintiff must provide evidence that the employer is lying about
its stated reasons for the adverse actions. See id.; see also McGrath v. Clinton, 674 F. Supp. 2d
131, 145 (D.D.C. 2009) (the plaintiff’s only evidence that employer was lying about its stated
reasons were “his own allegations,” which was insufficient to prove retaliation).
In the present case, plaintiff’s primary argument is that she did not actually lie during the
October 28, 2008 interview, so defendant’s decision to terminate her for the truthfulness
violation was necessarily pretextual. See Pl.’s Opp. at 6–9, 11–17, 23–24, 28; Moran Aff. ¶¶ 18–
19, 23–24. Specifically, plaintiff claims that during the interview she admitted calling SA Susak
“trash” and telling her to “get the f*** out of the car,” and that she honestly stated that she
“didn’t recall” making any comment about shooting SA Susak with a BB gun. Moran Aff.
¶¶ 18–19. In response to the notes taken by SSA Stonestreet and SSA DeWolfe that reflect that
plaintiff instead denied making both statements, plaintiff argues that the notes were not taken
“contemporaneously” or immediately after the interview, and that they were either purposefully
falsified or inaccurate. Pl.’s Opp. at 6–7, 9, 15; Moran Aff. ¶¶ 20–22. Plaintiff insists that
because “there are material and substantial disputes of fact as to what Moran was asked and what
her responses were at the interview held on October 28, 2008,” defendant’s summary judgment
motion must be denied. Pl.’s Opp. at 6.
Plaintiff’s explanations – supported only by her own self-serving affidavit and appeal
letter – do no nothing more than deny the facts of the underlying events, and this alone is not
ordinarily enough to disprove defendant’s stated grounds for its actions. See, e.g., Bonieskie v.
Mukasey, 540 F. Supp. 2d 190, 195 (D.D.C. 2008) (“Summary judgment for a defendant is most
likely when a plaintiff’s claim is supported solely by the plaintiff’s own self-serving, conclusory
22
statements.”); Fields v. Office of Johnson, 520 F. Supp. 2d 101, 105 (D.D.C. 2007) (noting that
“[s]elf-serving testimony does not create genuine issues of material fact” for purposes of
summary judgment).
And, in this case, the self-serving testimony is particularly suspect. In the affidavit
supplied by plaintiff in opposition to the instant motion for summary judgment, plaintiff
acknowledged the incident in which she referred to SA Susak as “trash,” but characterized it as
“joking,” and she admitted cursing at SA Susak later that day, but placed the conduct in the
context of SA Susak’s initiating an argument with her. Moran Aff. ¶ 18. The affidavit continues
as follows:
SSA Stonestreet then changed the subject, saying to me something to the
effect that I threatened to shoot Dana Susak with a BB gun. I replied that
I didn’t recall any such incident and that I wouldn't threaten to shoot
Dana Susak (with a BB gun or anything else).
Id. ¶ 19 (emphasis added). This sworn statement, submitted to the Court as an exhibit in this
case, Moran II, Civil Action 12-0801, is the key piece of evidence proffered by plaintiff in
support of her contention that she did not lie in the Stonestreet interview, and therefore that
defendant’s statement that she was terminated for untruthfulness is not worthy of belief.
But this self-serving evidence is not only contradicted by the notes taken at the time – it
is flatly contradicted by a sworn declaration provided by plaintiff herself to this Court on another
occasion. In Moran I, Civil Action 09-1819, plaintiff executed a declaration in opposition to the
motion for summary judgment in that case on February 14, 2012. In it, she averred that in
October 2008:
I was interviewed by SSA Raymond Stonestreet about saying the word
“f***” in front of SA Dana Susak and about an allegation that I made a
threatening statement to SA Dana Susak in regards to a BB gun. I told
him that I did tell SA Dana Susak “to get the fuck out of my vehicle”, but
23
that I did not threaten SA Susak with a BB gun. . . . SSA Jack DeWolfe
witnessed this interview.
Decl. of Luanne L. Moran, Ex. 1 to Pl.’s Opp. to Def.’s Mot. for Summ. J., No. 09-1819 [Dkt.
# 35-1] ¶ 9 (emphasis added).
So plaintiff herself has already sworn to this Court that during the Stonestreet interview,
she denied – and did not profess a failure to recall – the BB gun incident. This is entirely
consistent with defendant’s rendition of events and it suggests that plaintiff’s more recent
affidavit – which is entitled to little weight in any event – does not create a genuine issue of
material fact that would send this case to a jury.
What matters at the summary judgment stage is whether defendant honestly and
reasonably believed that plaintiff had in fact been untruthful during an official investigation in
violation of USCP policy. Brady, 520 F.3d at 496. The Court finds that defendant’s belief was
reasonable in light of all of the evidence, and that there is “no basis for permitting a jury to
conclude that [defendant] is lying about the underlying facts.” Id. at 495. 9
In further support of her contention that defendant’s proffered reason for her termination
is pretextual, plaintiff also claims that the “use of profanity [among USCP officers] was
commonplace and not disciplined in any meaningful way,” and therefore, that plaintiff was
singled out by her supervisors. Pl.’s Opp. at 12, 26; Moran Aff. ¶ 25. But the adverse
9 In any event, plaintiff’s focus on the alleged shortcomings of the truthfulness
investigation – including the involvement of SSA Stonestreet and SSA Simmons, the accuracy
and contemporaneity of SSA DeWolfe’s notes, and the sufficiency of Investigator Huycke’s
inquiry – entirely misses the point. As discussed above, the only portion of plaintiff’s claim that
remains intact relates exclusively to her termination, not to the course of conduct leading up to it.
See Mot. to Dismiss Tr. at 11:24–12:4, 13:14–20, 17:1–10. So even if the Court credits
plaintiff’s unsupported claims that she told the truth during the interview, that SSA Stonestreet
and SSA DeWolfe fabricated their notes in retaliation for plaintiff’s protected conduct, and that
Investigator Huycke’s inquiry was flawed, plaintiff still has not put forth sufficient evidence
from which a reasonable jury could conclude that the CPB panel’s decision to approve her
termination was itself retaliatory.
24
employment action at issue here is defendant’s termination of plaintiff for untruthfulness, not for
the use of profanity. See CPB Termination Mem. at 1 (recommending that plaintiff be
terminated for violation of “Operational Directive PRF 1.3, Rules of Conduct, Category A: Duty
to Obey, Rule A7: Truthfulness”). And the record evidence demonstrates that termination for
untruthfulness fell squarely within defendant’s policies and precedent. See Ball Mem. at 3
(noting that “[t]he USCP Draft Penalty Table recommends termination of employment for a first
violation” of the truthfulness directive, and that “[a] review of recent cases involving violations
of this rule . . . reveals that each violating employee received . . . termination of employment.”).
Plaintiff also contends that the fact that SSA Stonestreet was present when plaintiff
referred to SA Susak as “trash” but took no disciplinary action in response, is further evidence
that she was actually terminated in retaliation for her protected activity. Pl.’s Opp. at 5–6;
Moran Aff. ¶¶ 15, 18. But once again, plaintiff was not terminated for her rude comments – she
was terminated based on defendant’s reasonable determination that she lied during an official
investigation. And SSA Stonestreet was only present for that one event, and not for the two
more serious incidents that prompted the initial investigation. See Truthfulness Investigation
Rep. at 1 (listing as the “specific allegations” against plaintiff as “the use of profanity toward SA
Dana Susak” and “stating that Susak should be shot with a BB gun”).
Further, plaintiff claims that she had never been the subject of any disciplinary actions or
investigations until after she engaged in protected activity in August 2008. Pl.’s Opp. at 3, 23;
Moran Aff. ¶ 8. But that does not tend to show that her termination was retaliatory, and the other
disciplinary actions were dealt with in Moran I in any event.
25
Finally, plaintiff claims that Chief Morse offered to reinstate plaintiff if she withdrew the
complaint she had filed in Moran I, Pl.’s Opp. at 18–19, 23; Moran Aff. ¶ 27, and that this
demonstrates that plaintiff’s termination for a truthfulness violation was pretextual:
If, as Chief Morse contends, Moran was untruthful in the investigation and
if such untruthfulness would essentially prevent her from ever testifying in
the course of her official duties, then why would Chief Morse be willing to
reinstate Moran under any circumstances? The answer is clear – he knew
that Moran was not untruthful and his actions to terminate Moran’s
employment were retaliatory for her protective [sic] activities.
Pl.’s Opp. at 19 n.9. Once again, plaintiff has offered no evidence, apart from her own
testimony, to support this assertion. And the record indicates that while plaintiff was indeed
given the opportunity to avoid termination, it was on the condition that she take responsibility for
her actions by admitting to having lied during the investigation, not that she dismiss the pending
lawsuit. See DRB Appeal Denial at 3 (“I have provided every opportunity for Officer Moran to
simply tell the truth and avoid a potential termination circumstance. . . . Officer Moran has opted
not to do so.”); see also CPB Termination Mem. at 1 (“SA Moran was provided every
opportunity to simply tell the truth and avoid a potential termination circumstance but opted not
to do so.”). In any event, Chief Morse did not determine plaintiff’s punishment: termination
was first recommended by DRO Ball, see Ball Mem. at 4, and ratified by the DRB panel, see
DRB Findings at 3, and final approval of her termination rested with the CBP panel. See CPB
Termination Mem. So plaintiff’s allegations regarding Chief Morse’s conduct, even if true,
cannot create a genuine dispute of material fact about defendant’s motive for her termination.
CONCLUSION
Because defendant has put forth a legitimate non-retaliatory reason for terminating
plaintiff’s employment, and because plaintiff has failed to produce sufficient evidence to create a
26
genuine dispute of material fact on any issue that would belie that explanation, the Court will
grant defendant’s motion for summary judgment.
A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: February 12, 2015
27