Baumann v. District of Columbia ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KRISTOPHER BAUMANN,
Plaintiff,
v. Civil Action No. 09-1189 (CKK)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
(March 27, 2013)
Plaintiff Kristopher Baumann, Chairman of the District of Columbia Fraternal Order of
Police (“FOP”) and an Officer with the District of Columbia Metropolitan Police Department
(“MPD”), brings this action against the District of Columbia, Chief of Police Cathy L. Lanier,
Assistant Chief Patrick Burke, Assistant Chief Michael Anzallo, Commander Christopher
Lojacono, and Lieutenant Dean Welch, each in their individual and official capacities
(collectively, “Defendants”). The claims arise out of MPD’s investigation of the release to the
media of audio transmissions between members of MPD’s Emergency Response Team during a
barricade situation, and the Plaintiff’s testimony during an arbitration regarding Chief Lanier’s
All Hands on Deck initiative. The Third Amended Complaint alleges (1) the Defendants
violated the District of Columbia Whistleblower Protection Act, D.C. Code § 1-615.51 et seq.;
(2) the Defendants retaliated against the Plaintiff for exercising his First Amendment rights, in
violation of 42 U.S.C. § 1983; and (3) the MPD’s media policy, MPD General Order 204.1, is an
unlawful prior restraint in violation of the First Amendment. Presently before the Court is
Defendants’ [87] Motion for Summary Judgment. Upon consideration of the pleadings,1 the
relevant legal authorities, and the summary judgment record, the Court finds that although
Plaintiff’s claims are not preempted by the Comprehensive Merit Personnel Act, no reasonable
jury could conclude the Plaintiff made a protected disclosure for purposes of the Whistleblower
Protection Act. The Plaintiff’s First Amendment claims are similarly not pre-empted, but no
reasonable jury could conclude the protected activities identified by the Plaintiff were substantial
or motivating factors in prompting the allegedly retaliatory acts. Finally, the parties failed to
employ the proper legal standard in evaluating the Plaintiff’s claim that MPD General Order
204.01 as applied in this case constitutes an unlawful prior restraint. Accordingly, the
Defendants’ motion is GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE.
I. BACKGROUND
A. Barricade Incident & Initiation of FOP Safety Committee Investigation
The parties generally agree as to events at issue; the dispute arises in determining the
motivation for certain conduct. On Saturday May 30, 2009, the MPD Emergency Response
Team (“ERT”) responded to an incident in which a suspect barricaded himself inside a residence.
Defs.’ Stmt. ¶ 19.2 During the standoff, the following radio exchange, excerpted in relevant part,
took place between members of the ERT:
08:31: Command to Alpha One, be advised I’m being ordered to give you
the go to deploy gas. Copy?
1
Defs.’ Mot. for Summ. J., ECF No. [87]; Pl.’s Opp’n, ECF No. [89]; Defs.’ Reply, ECF
No. [91]; Pl.’s Suppl. Mem., ECF No. [92].
2
The Court shall cite only to Defendants’ Statement of Material Facts (“Defs.’ Stmt.”)
unless a statement is contradicted by the Plaintiff, in which case the Court may cite to Plaintiff’s
Response to the Statement of Material Facts (“Pl.’s Resp. Stmt.”), or directly to the record where
appropriate.
2
08:49: Alpha One to ERT Two, if you deploy that gas and we are not
prepared for that, we are not prepared to [inaudible] just yet, please
standby for just five more minutes.
09:00: [ERT Two] Copy, I just need communication from you because
I’m getting, ah, issues down here. I just need you to keep me
informed so I can inform them because, I’m getting - pressured.
09:13: [Alpha One] I understand ERT Two, ‘cause I’m trying to put a
couple of things in place here. If you can give me a couple of
minutes, I’ll be happy to brief you.
***
09:40: Alpha One to ERT Two, would you let command know that we
have been in contact with him again, and if they will please just
give us a couple of minutes, I’m gonna try to resolve this . . .
09:50: [ERT Two] . . . I’ll advise.
***
10:17: [Delta One replies to Charlie One] . . . also can you advise ERT
One, Two, the Command and the Chief they’re in a, ah, bad
situation. I can see ‘em from the front door here. So, if anything
happens, they in the line of fire.
10:37: [Charlie One] I’ll tell them to move out the way . . .
Pl.’s Ex. 26 (10/1/2010 PERB Hearing Examiner’s Report & Recomm.) at 10. The incident was
resolved shortly thereafter without deploying tear gas. Id.The following Monday, Officer Wendell Cunningham—a member of the ERT and Vice
Chairman of the FOP, Pl.’s Ex. 26 at 9—contacted the Plaintiff to discuss concerns raised
regarding the incident. See, e.g., Pl.’s Ex. 2 (1/25/10 PERB Tr.) at 361:21-362:1. The Plaintiff
instructed Officer Cunningham to initiate an FOP Safety Committee investigation into the
incident. Id. at 175:5-8 (“I told [the Plaintiff] I think we need to activate the Safety Committee
on the situation. And he told me, just go ahead and do what I have to do in reference to that.
And I went ahead.”); Defs.’ Stmt. at ¶¶ 21, 23. Officer Cunningham is not a member of the FOP
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Safety Committee, but as Vice-Chairman of the FOP, he is responsible for all FOP committees.
Pl.’s Ex. 20 (IAB Invest. Report) at 11. Officer Kevin Brittingham chairs the FOP Safety
Committee, with Officer Hiram Rosario serving as the co-chair. Pl.’s Ex. 3 (Baumann Dep. Tr.)
at 100:1-10.
At the Plaintiff’s instruction, Officer Cunningham requested a copy of the transmission
“over the ERT channel” during the incident for purposes of “incident review.” Defs.’ Ex. H
(6/3/2009 Email W. Cunningham MPD Transcriptions). MPD released a copy of the
transmission to Officer Cunningham on June 5, 2009, at which time he signed an
acknowledgment that “[i]t is understood[,] the following recordings are for internal investigation
only[,] there are no public requests for any of these incidents and the recordings will not be
released to the public without prior, written approval from the Office of Unified
Communications.” Defs.’ Ex. I (Documentation Receipt). On June 5, 2009, Plaintiff released a
portion of the MPD radio transmissions recorded during the incident to the media. Pl.’s Resp.
Stmt. ¶ 60. The following day, the Internal Affairs Bureau of the MPD opened an investigation
into the release of the recording to the media, initially alleging that Officer Cunningham released
the transmission to the media. Def.’s Ex. K (6/6/2009 Incident Summary Sheet); see also Defs.’
Stmt. ¶ 35; Pl.’s Resp. Stmt. ¶ 35.
B. All Hands on Deck Arbitration & Internal Affairs Investigation
In 2007, Chief Lanier launched the “All Hands on Deck” initiative. Defs.’ Ex. B (Gary
Reals, DC Police Launch 4th Installment of ‘All Hands On Deck’, wusa9.com, Oct. 30, 2007).
On January 7, 2009, Chief Lanier announced the policy would continue during the 2009 calendar
year and indicated that on eight specified three-day weekends and all MPD members would work
8-hour tours of duty on the listed dates. Defs.’ Ex. C (9/9/2009 Opin. & Award) at 6. MPD
4
members would not be scheduled for days off on the dates at issue, and leave would be restricted
for the dates unless approved prior to January 7, 2009. Id. The Plaintiff was critical of the
initiative, Defs.’ Ex. B, and the FOP challenged the continuation of the policy into 2009 in
arbitration, see generally Defs.’ Ex. C. The Plaintiff testified as a witness on behalf of the FOP
as part of the arbitration. Id. at 7-11; Defs.’ Stmt. ¶ 4. During a break in his testimony, Plaintiff
received an email from Lieutenant Welch with Internal Affairs requesting “a date and time at
your earliest convenience” for an interview “concerning an administrative investigation.” Defs.’
Ex. D (6/17/2009 Email D. Welch to K. Baumann). Plaintiff did not respond directly to the
email, Defs.’ Stmt. ¶ 8, and instead emailed Michael Viehmeyer, the acting Director of the Labor
and Employee Relations Unit within the Office of General Counsel, inquiring if the Plaintiff was
the subject of the investigation and whether the email was directed to the Plaintiff in his capacity
as FOP Chairman, Pl.’s Ex. 11 (6/17/2009 Email K. Baumann to M. Viehmeyer) at 1. Mr.
Viehmeyer responded that same day indicating that he “ha[d] no idea what this is regarding, but
[would] check.” Pl.’s Ex. 12 at 1.
The following day, June 18, 2009, Plaintiff spoke at a Ward 5 community meeting.
Lieutenant Ronald Wilkins attended the meeting at the request of MPD, purportedly to “monitor”
Plaintiff’s speech. Defs.’ Stmt. ¶ 41; Pl.’s Resp. Stmt. ¶ 42. That same evening, Plaintiff
received an email from Lieutenant Paul Alex Charity instructing Plaintiff to attend an interview
with Internal Affairs on June 19, 2009. Pl.’s Ex. 13. Internal Affairs subsequently interviewed
Plaintiff on June 19, 2009 and July 14, 2009. Defs.’ Stmt. ¶ 37.
As a result of his investigation, Lieutenant Welch concluded (in relevant part), that the
Plaintiff provided the transmission to the media “without receiving proper authorization,” and
the information “was provided to the media as a means to discredit Officials of the Department,
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and discredit the Department as a whole.” Pl.’s Ex. 20 at 28-29. On December 20, 2009, MPD
issued a Final Notice of Adverse Action, citing the Defendant for violating MPD General Order
204.1, Part VI-C-1 & 7 by releasing the audio transmissions to the media without “the prior
written approval from the Office of Unified Communications” or MPD. Pl.’s Ex. 22 (Final
Notice of Adverse Action) ¶ 3 (referencing Pl.’s Ex. 21 (Notice of Proposed Adverse Action) at
1). The Plaintiff was also cited for violating MPD General Order 120.21 by releasing the
transmission before initiating an investigation in his role as Chairman or notifying Internal
Affairs of any alleged dangerous behavior. Id. (referencing Pl.’s Ex. 21 at 2).
C. Present Litigation and Revocation of the Plaintiff’s Police Powers
The Plaintiff filed his initial Complaint accompanied by a motion for preliminary
injunction with this Court on June 29, 2009. Compl., ECF No. [1], Mot. for Prelim. Inj., ECF
No. [4]. The Court denied Plaintiff’s request for preliminary injunctive relief on July 11, 2009.
7/11/2009 Order & Mem. Opin., ECF Nos. [12, 13].
Two days later, MPD revoked Plaintiff’s police powers, confiscated his weapon and
badge, and placed him on non-contact status, allegedly for failing to complete CPR, automated
external defibrillation, and extendable baton training for 2008. Pl.’s Resp. Stmt. ¶ 79; Defs.’ Ex.
F (7/6/2009 Incident Summ. as to K. Baumann); see also Pl.’s Ex. 29 at 9 (defining non-contact
status). For the sake of brevity, the Court refers to all of the actions taken against the Plaintiff in
connection with the training issue collectively as the revocation of his police powers. Delroy
Burton, another FOP official, likewise had his police powers revoked for failing to attend the
required 2008 extendable baton and CPR training. Defs.’ Ex. G (7/6/2009 Incident Summ. as to
D. Burton). On appeal, Chief Lanier dismissed the second violation, and reduced the Plaintiff’s
suspension (without pay) from five days to three days. Pl.’s Ex. 23 (2/5/10 Ltr C. Lanier to K.
6
Baumann) at 7.
D. 2011 Traffic Stop Investigation
On May 6, 2011, Celia Taylor with the Washington Regional Threat and Analysis Center,
operated by MPD, observed the Plaintiff stop a vehicle while driving “a black Dodge Charger
with District of Columbia license plates, and equipped with emergency response police
equipment.” Defs.’ Ex. N (7/19/2011 Final Invest. Report) at 1. Ms. Taylor mentioned the
incident to her supervisor Tom Wilkins during a conversation on or about May 16, 2011. Id.Mr. Wilkins in turn mentioned the incident to Assistant Chief of the Internal Affairs Bureau
Michael Anzallo during a meeting regarding an unrelated matter. Id. Assistant Chief Anzallo
asked Mr. Wilkins to instruct Ms. Taylor to record her observations in writing. Id. Ms. Taylor
composed an email recounting her observations, which she forwarded to Mr. Wilkins, who
subsequently forwarded the email to Assistant Chief Anzallo and Mark Viehmeyer. Id.Assistant Chief Anzallo further instructed his administrative Lieutenant to assign the matter to
the LERU for investigation. Id. On May 25, 2011, Lieutenant Linda Nischan was directed to
investigate the matter. Id. at 2. The Office of the General Counsel contacted the Department of
Motor Vehicles and determined that the FOP was authorized to operate the vehicle in question as
an “Authorized Emergency Vehicle.” Id. Accordingly, Lieutenant Nischan concluded the
Plaintiff did not violate any District or MPD rules or regulations by performing the traffic stop in
the Dodge Charger. Id. at 3; Defs.’ Stmt. ¶¶ 49, 51.
E. Administrative Proceedings
In parallel to the district court litigation, on June 29, 2009, the FOP filed several unfair
labor practice (“ULP”) complaints with the Public Employees Review Board (“PERB”),
including:
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(1) PERB Case No. 09-U-4: Alleging “Respondents committed ULPs by
interfering, intimidating and retaliating against [Baumann] while he was testifying
in his representational capacity at an arbitration challenging MPD’s All Hands On
Deck Initiative. Pl.’s Ex. 26 at 2-3. This complaint was later amended to allege
the 3-day suspension imposed on Baumann purportedly for releasing the
recording to the media was an unfair labor practice. Id. at 3.
(2) PERB Case No. 09-U-42: Alleging that “as a result of Welch’s e-mail to
Baumann to report to IAB for an administrative investigation, the MPD
committed ULPs by compelling Baumann to respond to questions . . . regarding
protected union activities.” Id.(3) PERB Case No. 09-U-43: Alleging that “MPD committed ULPs by
interfering, restraining, intimidating and retaliating against Baumann” while
testifying at the AHOD hearing insofar as Baumann received an email from
Lieutenant Welch regarding the Internal Affairs interview during a break in his
testimony. Id.(4) PERB Case No. 09-U-44: Alleging MPD committed ULPs against
Baumann by sending the June 18, 2009 email instructing Baumann to attend the
Internal Affairs interview the following day, and by threatening Baumann with
discipline if he did not answer the questions posed during the interview. Id. at 4.
The PERB held hearings on the various complaints across nine days in January and
February 2010. Id. at 5. The Hearing Examiner found that because “there was no confidential
tactical information on the ERT radio communications recording,” the MPD lacked a legitimate
reason to discipline the Plaintiff, and therefore concluded that “MPD disciplined Baumann in
retaliation for the protected activity of releasing the ERT radio communications to the news
media.” Pl.’s Ex. 26 at 28-30. However, the Hearing Examiner dismissed the Plaintiff’s claims
that the emails to the Plaintiff from Internal Affairs requesting an interview and the first Internal
Affairs interview constituted unfair labor practices. Id. at 31-35. With respect to the email, the
Hearing Examiner held that “FOP’s assertions regarding Welch’s motives for sending the e-mail
to Baumann to schedule an IAB interview are vague, speculative and nothing more than
inferences without support in the record,” and “there is no material evidence to support a finding
that Welch knew Baumann was testifying at the AHOD arbitration or that Baumann had a
8
BlackBerry or that Baumann would check his e-mails at that time.” Id. at 35. In terms of the
Plaintiff’s initial Internal Affairs interview, the Hearing Examiner conclude that “[f]or his part,
Welch accepted Baumann’s refusal to answer questions. Therefore, this record establishes that
IAB did not engage in any conduct which violated FOP and Baumann’s assertion of a labor
relations privilege based on Baumann’s representational role as FOP Chairman.” Id. at 33.
The Plaintiff separately filed a complaint relating to MPD’s revocation of his police
powers. See generally Pl.’s Ex. 29 (9/25/2010 PERB Hearing Examiner’s Report & Recomm.).
Noting the history of animosity between the Plaintiff and the Assistant Chief responsible for
revoking the Plaintiff’s police powers, the Hearing Examiner explained that “[b]ased on the
record as a whole, it is fair to conclude that the predominant motive for the Respondents’
unprecedented and unilateral actions in its treatment of the Union officials; that is, to retaliate for
their assertive activism on behalf of the FOP and its members.” Id. at 28.
II. LEGAL STANDARD
“The court shall grant summary judgment 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).
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials); or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to
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properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When
considering a motion for summary judgment, the court may not make credibility determinations
or weigh the evidence; the evidence must be analyzed in the light most favorable to the
nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). “If material facts are at issue, or, though undisputed, are
susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman,
571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted).
The mere existence of a factual dispute, by itself, is insufficient to bar summary
judgment. See Liberty Lobby, 477 U.S. at 248. “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Id. For a dispute about a material fact to be “genuine,” there must be sufficient
admissible evidence that a reasonable trier of fact could find for the nonmoving party. Id. The
Court must determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251-52. “If the evidence is merely colorable, or is not sufficiently probative, summary
judgment may be granted.” Id. at 249-50 (internal citations omitted). The adverse party must
“do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Conclusory
assertions offered without any factual basis in the record cannot create a genuine dispute. See
Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
III. DISCUSSION
The Defendant moves for summary judgment as to all claims in the Third Amended
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Complaint, on several grounds. The Plaintiff did not cross-move for summary judgment on any
issues. The Court begins by addressing the Defendant’s contention that the Comprehensive
Merit Personnel Act pre-empts the Plaintiff’s causes of action, giving the PERB exclusive
jurisdiction over the claims at issue. The Court then examines the Plaintiff’s claims under the
Whistleblower Protection Act and his First Amendment retaliation claims. Finally, the Court
briefly turns to the Plaintiff’s assertion that MPD General Order 204.01 is an unlawful prior
restraint.3
A. Preemption by the Comprehensive Merit Personnel Act
Initially, the Defendants argue that the PERB has exclusive jurisdiction over the
Plaintiff’s claims. Defs.’ Mot. at 20-21. The Comprehensive Merit Personnel Act (“CMPA”),
D.C. Code § 1-601.01 et seq., established the PERB, which decides “whether unfair labor
practices have been committed and issue [] appropriate remedial order[s].” D.C. Code §§ 1-
605.01, 605.02(3). The District of Columbia Court of Appeals has found that various types of
claims against an employer are pre-empted by the administrative remedies provided by the
CMPA. District of Columbia v. Thompson, 593 A.2d 621, 625 (D.C. 1991) (finding the CMPA
precluded a District employee from filing suit for defamation and emotional distress claims
arising out of written evaluation by plaintiff’s supervisor); see also Lewis v. D.C. Dep’t of Motor
Vehicles, 987 A.2d 1134 (D.C. 2010); Wilson v. District of Columbia, 608 A.2d 161 (D.C. 1992)
(extending Thompson to breach of contract claims).
The Defendants do not specifically address pre-emption of the Whistleblower Protection
3
At various points in his opposition, the Plaintiff emphasizes that the Defendants did
contest certain elements of the Plaintiff’s claims in their motion for summary judgment. E.g.,
Pl.’s Opp’n at 27. Because the Plaintiff did not cross-move for summary judgment as to any
portion of his claims, the Court makes no findings as to issues the Defendants did not raise in
their motion.
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Act claims in their initial motion, nor do they respond to the Plaintiff’s argument on this issue.
Therefore, the Court assumes the Defendants are not pursuing their pre-emption claim with
respect to the Plaintiff’s state law claim. To the extent this argument has been raised, for the
reasons stated by Judge Gladys Kessler in Sharma v. District of Columbia, 791 F. Supp. 2d 207(D.D.C. 2011), the Court finds the CMPA does not pre-empt the Plaintiff’s Whistleblower
Protection Act claims. Id. at 216-17 (noting the act specifically provides for both judicial and
administrative remedies).
The CMPA does not foreclose this Court from entertaining claims over which it has
original jurisdiction, including constitutional claims brought under 42 U.S.C. § 1983.
Deschamps v. District of Columbia, 582 F. Supp. 2d 14, 16 (D.D.C. 2008); see Lightfoot v.
District of Columbia, 448 F.3d 392, 399 (D.C. Cir. 2006) (noting that even where the judicial
review provision of a local statute “places exclusive jurisdiction in the D.C. Court of Appeals,”
“that does not mean that a federal court lacks authority to entertain a claim under § 1983 that
would also be cognizable” as a claim under the local statute). “Mere invocation” of the
Constitution may be insufficient as the Defendants suggest, but in cases such as this, where the
plaintiff states a constitutional claim and seeks relief not available through the administrative
process—i.e., compensatory and punitive damages—the CMPA does not deprive this Court of
jurisdiction over the Plaintiff’s constitutional claim. McManus v. District of Columbia, 530 F.
Supp. 2d 46, 69 (D.D.C. 2007); accord Owens v. District of Columbia, --- F.3d ---, 2013 WL
563425, at *5 (D.D.C. Feb. 14, 2013). Having established the Court has jurisdiction, the Court
turns to the claims alleged in the Third Amended Complaint.
B. Whistleblower Protection Act Claims
The District of Columbia Whistleblower Protection Act prohibits any “supervisor” from
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threatening to take or taking a prohibited personnel action or otherwise retaliating against an
employee because of the employee’s “protected disclosure.” D.C. Code § 1–615.53. A
“protected disclosure” is defined as:
any disclosure of information, not specifically prohibited by statute, by an
employee to a supervisor or a public body that the employee reasonably believes
evidences:
(A) Gross mismanagement;
(B) Gross misuse or waste of public resources or funds;
(C) Abuse of authority in connection with the administration of a public
program or the execution of a public contract;
(D) A violation of a federal, state, or local law, rule, or regulation, or of a
term of a contract between the District government and a District
government contractor which is not of a merely technical or minimal
nature; or
(E) A substantial and specific danger to the public health and safety.
Id. at § 1–615.52(a)(6). “A ‘protected disclosure’ under the [statute] is one that the employee
‘reasonably believes' evidences one or more of the circumstances delineated in D.C. Code § 1–
615.52(6)(A)-(E) (2001).” Wilburn v. District of Columbia, 957 A.2d 921, 925 (D.C. 2008).
The “‘employee must disclose such serious errors by the agency that a conclusion the agency
erred is not debatable among reasonable people.’” Id. (quoting White v. Dep’t of the Air Force,
391 F.3d 1377, 1382 (Fed. Cir. 2004)).
A “public body” for purposes of the Whistleblower Protection Act includes “[a]ny
federal, District of Columbia, state, or local law enforcement agency, prosecutorial office, or
police or peace officer.” Id. at § 1–615.52(a)(7)(D). A “supervisor” is
an individual employed by the District government who meets the definition of a
“supervisor” in § 1-617.01(d) or who has the authority to effectively recommend
or take remedial or corrective action for the violation of a law, rule, regulation or
contract term, or the misuse of government resources that an employee may allege
13
or report pursuant to this section, including without limitation an agency head,
department director, or manager.
D.C. Code § 1–615.52(a)(8).4
The Defendants move for summary judgment on the grounds the Plaintiff failed to make
a protected disclosure under the Whistleblower Protection Act. In response, the Plaintiff
identifies several discrete “protected disclosures” as the basis for this claim: (a) Plaintiff’s
referral of the barricade situation to the Safety Committee(s); (b) Plaintiff’s testimony before the
Arbitrator regarding the All Hands on Deck initiative; (c) Plaintiff’s June 11, 2009 email to his
supervisors regarding the barricade situation; and (d) Plaintiff’s interviews with Internal Affairs.
The Court examines each purported protected disclosure separately.
1. Referral of the Barricade Situation to the Safety Committee(s)
Plaintiff initially bases his whistleblower claim on his referral of the barricade situation to
the Safety Committee(s). In his opposition, the Plaintiff specifically argues this “referral”
encompassed three separate protected disclosures: to Officer Cunningham, to the FOP Safety
Committee, and to the Joint Safety Committee. As set forth below, none of these purported
disclosures fall within the scope of the Whistleblower Protection Act.
a. Referral to Officer Cunningham
Plaintiff asserts that “Officer Wendell Cunningham is a police officer and therefore the
protected disclosure made to Officer Cunningham was a protected disclosure to a public body.”
Pl.’s Opp’n at 22. With this argument, the Plaintiff attempts to have his cake and eat it too. The
4
Section 1-617.01(d) of the D.C. Code provides a “supervisor” means “an employee
having authority, in the interest of an agency, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to
evaluate their performance, or to adjust their grievances, or effectively to recommend such
action,” if the exercise of this authority “is not of a merely routine or clerical nature, but requires
the use of independent judgment.”
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Plaintiff consistently characterized his own conduct and Officer Cunningham’s conduct as being
performed as representatives of the FOP, yet now argues Officer Cunningham was not serving as
a union official during the relevant time period. Throughout the IAB investigation and his
pleadings, Plaintiff referred to Officer Cunningham in his capacity as Vice Chairman of the FOP
when discussing the FOP Safety Committee investigation. E.g., Pl.’s Opp’n at 13 (“[D]uring the
interview, the Plaintiff disclosed to Lieutenant Welch that ‘quite a few people had raised
concerns’ about the barricade incident and that as a result, he instructed Vice Chairman
Cunningham to investigate the barricade situation.”) (emphasis added); id. at 89 (Vice Chairman
Cunningham, not Chairman Baumann, obtained the recording of the barricade for purposes of
the safety investigation.”) (emphasis added); Pl.’s Ex. 18 at 17 (“Any communications I had with
. . . Vice Chairman Cunningham would be in my role as chairman.”) (emphasis added). Officer
Cunningham’s own testimony to Internal Affairs reflected his understanding that he was acting
in his capacity as a union official in investigating the barricade situation. Pl.’s Ex. 20 at 20
(“[Officer Cunningham] maintained that he retained the right, as a Union official, to discuss the
matter with the Union Chairman.”). Plaintiff’s initiation of the FOP Safety Committee
investigation was undoubtedly communicated to Officer Cunningham while both individuals
were operating in their capacities as FOP officials. The Plaintiff offers no authority for the
proposition that a disclosure made to a union official acting in that capacity, but technically also
a police officer, qualifies as a protected disclosure under the statute. Officer Cunningham did
not receive the disclosure in his capacity as a police officer, therefore the disclosure was not to a
“public body” as defined by the Whistleblower Protection Act.
Alternatively, the record establishes that the Plaintiff did not make any protected
disclosure to Officer Cunningham at the time he instructed Officer Cunningham to initiate the
15
FOP Safety Committee investigation. Officer Cunningham was present at the barricade, and
overheard the relevant communications. Pl.’s Ex. 2 at 367:10-13. It was Officer Cunningham
who approached the Plaintiff following the incident, and expressed his concerns regarding the
incident. Id. at 361:21-362:1. The Plaintiff does not identify any information the Plaintiff
disclosed to Officer Cunningham that might qualify as a protected disclosure under the
Whistleblower Protect Act.
b. Referral to the FOP Safety Committee
The Plaintiff also contends that his instruction to Officer Cunningham to initiate the FOP
Safety Committee investigation was in effect a protected disclosure to the FOP Safety
Committee itself. Ignoring the fact that Officer Cunningham is not a member of the FOP Safety
Committee, the Plaintiff propounds that the FOP Safety Committee is a “supervisor” for
purposes of the Whistleblower Protection Act because it is “a properly sanctioned committee that
addresses safety issues directly with high level command officials in the MPD, and therefore has
the authority to effectively recommend or take remedial or corrective action for the barricade
safety concerns.” Pl.’s Opp’n at 22.5 It is not \clear from the record that the FOP Safety
Committee has sufficient authority to be considered a “supervisor” under the act. See Pl.’s Ex. 2
(1/25/2010 PERB Tr.) at 214:7-14 (indicating the committee “tr[ies] to address” safety issues
brought to its attention by contacting the relevant bureau head “to see if we can come to – you
know, to rectify the problem or work in a direction to – you know, to take care of the problem”).
Assuming the Plaintiff’s characterization of the FOP Safety Committee is accurate, the
committee still fails to meet the WPA definition of a supervisor because it is not “an individual
5
The Plaintiff does not argue that the FOP Safety Committee is a “public body” for
purposes of the Whistleblower Protection Act. Pl.’s Opp’n at 22.
16
employed by the District government.” The FOP Safety Committee is neither an individual nor
is it employed by the District of Columbia. Therefore, Plaintiff’s referral of the barricade
situation to the FOP Safety Committee was not a “protected disclosure.”
c. Referral to the Joint Safety Committee
Plaintiff further argues that his instruction to Officer Cunningham to initiate the FOP
Safety Committee Investigation amounted to a protected disclosure to the Joint Safety
Committee which, in Plaintiff’s view, “likely” is a “public body” under the Whistleblower
Protection Act. Pl.’s Opp’n at 21-22. Curiously, the Plaintiff does not in fact argue the Joint
Safety Committee is a public body, instead speculating that it “likely” can be characterized as
such. In any event, the Court need not reach this issue because the record reveals the barricade
issue never reached the Joint Safety Committee. Officer Cunningham testified before the PERB
that the Joint Safety Committee has never convened. Pl.’s Ex. 2 (1/25/10 PERB Tr.) at 391:12-
392:9; see also id. (Test. of Chief Lanier) at 1318:20-1319:19 (“I’m not familiar with there ever
being [a Joint Safety Committee] since I’ve been the Chief.”). The FOP, per Officer
Cunningham, had never designated the FOP representatives for the Joint Safety Committee. Id.
at 394:10-15 (W. Cunningham); accord id. at 1321:17-1322:12. The Plaintiff acknowledged the
Joint Safety Committee did not exist at that time, but suggests that “the FOP Safety Committee
has become the de facto Joint Safety Committee.” Id. at 1525:22-1526:1; accord Def.’s Ex. A
(Baumann Dep.) at 95:1-6 (“I made a referral to our—and by our, I mean the FOP safety
committee, which is the—is operated as the joint safety committee for the department under our
contract. The department has a—hadn’t had anybody on it for some time.”). To the extent the
FOP Safety Committee operates as the “Joint Safety Committee,” the Plaintiff fails to articulate
how a committee comprised entirely of union officials is an “instrumentality” of the MPD. See
17
D.C. Code § 1-615.32(a)(7)(C). Thus, any disclosure to the “Joint Safety Committee” was not a
protected disclosure under the Whistleblower Protection Act. Having failed to identify any
protected disclosure to a public body or supervisor, Defendants are entitled to summary
judgment as to Plaintiff’s WPA claim based on Plaintiff’s referral of the barricade situation to
the safety committee(s).
2. Plaintiff’s Testimony Regarding the All Hands on Deck Initiative
The Plaintiff identifies his second “protected disclosure” as his testimony before the
arbitrator charged with evaluating the FOP’s grievances regarding the All Hands on Deck
initiative. The Defendants contend that Plaintiff’s testimony did not amount to a protected
disclosure because Plaintiff simply added to the ongoing public debate on the initiative. In
Williams v. District of Columbia, 9 A.3d 484 (D.C. 2010), the D.C. Court of Appeals confirmed
what it had previously implied: a disclosure is not protected if the facts alleged are “public
knowledge” and there has been “vocalized public concern about the very information that
[plaintiff] conveyed.” Id. at 489. To be fair, the court stopped short of limiting protected
disclosures to “instances in which no one in the general public is aware of the abuse.” Id.Applying Williams, District Judge James E. Boasberg determined a MPD Officer’s
interview with the Washington Post about the All Hands on Deck initiative was not a protected
disclosure. Hawkins v. Boone, 786 F. Supp. 2d 328, 334 (D.D.C. 2011). In rejecting the
plaintiff’s whistleblower claim, Judge Boasberg noted “Hawkins was entering a debate about a
controversial issue long discussed by both sides. Just as in Williams, members of the public and
the press had ‘themselves perceived an alleged abuse, and already vociferously and repeatedly
draw[n] attention’ to the AHOD policy long before Hawkins entered the debate.” Id. (quoting
Williams, 9 A.3d at 490).
18
In this case, the Plaintiff alleges his testimony before the arbitrator was “not simply
adding to the public debate, but was providing specific information regarding the MPD’s
statutory and regulatory violations that had not previously been made public.” Pl.’s Opp’n at 24.
Despite general assertions that the information provided by the Plaintiff was “new,” nowhere in
his opposition does the Plaintiff identify any specific statements or disclosures to the arbitrator
that were not duplicative of information already within the realm of public knowledge.
Furthermore, the arbitrator’s summary of the Plaintiff’s testimony indicates the Plaintiff
primarily offered legal analysis rather than factual testimony. Defs.’ Ex. C (9/6/2009 Opin. &
Award) at 8-11. The summary reflects the fact that the Plaintiff authenticated various
documents, including prior FOP challenges to the All Hands on Deck initiative, and testified as
to why he believed the policy violated various provisions of the Collective Bargaining
Agreement. At no point in his opposition does the Plaintiff claim that any of the factual
information provided in his testimony—namely the details of the initiative, including the
limitation on vacation time during the summer—was “new” information. In other words, the
Plaintiff’s testimony may have offered new legal analysis of the facts well-established in the
public debate, but there is nothing in the record to suggest the Plaintiff offered any new
information evidencing a violation of local law as required for a protected disclosure under the
Whistleblower Protection Act. D.C. Code § 1-615.53; see Williams v. Johnson, 701 F. Supp. 2d
1, 15 (D.D.C. 2010).
3. Plaintiff’s June 11, 2009 Email to His Supervisors
Plaintiff’s third purported “protected disclosure” occurred in his June 11, 2009 email to
his supervisors regarding their handling of the barricade situation. Plaintiff contends his email
“disclosed a violation of law as well as a substantial and specific danger to public health and
19
safety.” Pl.’s Opp’n at 25. The text of the email reveals otherwise. The relevant exchange of
emails began with Officer Kevin Brittingham contacting Assistant Chief Alfred Durham and
Assistant Chief Patrick Burke on June 10, 2009. Pl.’s Ex. 8 at 4 (6/10/2009 Email K.
Brittingham to A. Durham, P. Burke, J. Crane, J. Herold, S. Dignan, R. Chambers, & C.
Yarbaugh). Officer Brittingham’s email stated that “[i]t has been brought to my attention that
there are some safety concerns regarding barricades. It was noted that the barricades could
potentially result in deaths of citizens and/or officers.” Pl.’s Ex. 8 at 4. He thus asked “[w]ould
it be possible to schedule a meeting with all parties (copied on this message) to discuss this
further?” Id.Chief Burke responded by indicating he would be happy to set up a meeting and would
select a date for the meeting the following day. Id. Officer Charles Yarbaugh, who was copied
on the initial exchange, asked Officer Brittingham to meet with the “rank and file members” of
the ERT before requesting a meeting with Chief Durham and Chief Burke. Id. Officer
Yarbaugh indicated the failure to meet with ERT team members before meeting with
management led to “unfavorable decisions,” that have “adversely affected the original way ERT
was structured to operate.” Id.Chief Burke replied to Officer Yarbaugh’s email by making Captain Jeffrey Harold the
“point of contact,” and stating that “when the union coordinates their actions on this matter
please let me know how you wish to proceed.” Pl.’s Ex. 8 at 3. An unidentified person
forwarded the email exchange to Plaintiff, who then forwarded the chain to Chief Durham and
stated:
As you can see from the email chain, Chief Burke has asserted that the union has
failed to “coordinate” its actions and indicated that FOP Joint Safety Committee
requests must be made through the “chain of command.”
20
As demonstrated by the email chain, Chief Burke’s assertions are based on
matters raised by Sergeant Yarbaugh of the Emergency Response Team. As the
Department is well aware from the FOP’s past Article 9 notifications, Sergeant
Yarbaugh holds no elected or appointed office in the FOP and does not speak for
the FOP or any of its members. Sergeant Yarbaugh’s assertion that he speaks for
undisclosed and unnamed members of the bargaining unit makes Sergeant
Yarbaugh a representative of a rival organization. Chief Burke’s decision to defer
to or even consider Sergeant Yarbaugh’s request constitutes not only the
recognition of a rival organization, but also bargaining with representatives not
selected by members of the bargaining unit. That action is expressly prohibited by
the Agreement and D.C. Code, and the FOP has specifically warned the
Department about its failure to properly respect the rights of the FOP and the
scope of its responsibilities under the D.C. Code.
Further, Chief Burke’s failure to recognize the legitimacy of the FOP Safety
Committee’s request (i.e., “when the union coordinates their actions”) and to
make a first time ever assertion that the Committee is now subject to the “chain of
command,” violates what is commonly referred to as the equality rule and
represents a repudiation of the Agreement in general and Article 17 specifically.
The Department has been properly (and repeatedly) notified under Article 9 of
who the FOP’s designated representatives are, including the chair of the Joint
Safety Committee, Kevin Brittingham. The Department’s decision to deny a
legitimate and proper request from the FOP is unacceptable. The decision to do so
based on objections and interference from an individual that is not designated or
elected to represent the members of the bargaining unit is a violation of the law.
Any efforts by Captain Jeffery Herold to “handle” this matter will be viewed as
further interference with our members' right to bargain through representatives of
their own choosing.
Please accept this as yet another notification that your administration has failed to
live up to its obligations under the Agreement and D.C. law. The matter will be
referred to the Public Employees Relations Board as an unfair labor practice.
Pl.’s Ex. 8 at 1-2 (6/11/2009 Email K. Baumann to A. Durham, M. Viehmeyer, W. Cunningham,
K. Brittingham, P. Burke, & D. Burton).
Nothing in Plaintiff’s email could reasonably be construed to convey a “substantial and
specific danger to public health and safety.” In fact, the only discussion of safety issues in the
entire chain of emails occurred in Officer Brittingham’s initial email to Assistant Chiefs Durham
and Burke. The only basis on which Plaintiff’s email might be considered a protected disclosure
21
is under Section 1-615.52(a)(6)(D), which concerns disclosures of violations of “a federal, state,
or local law, rule, or regulation, or of a term of a contract between the District government and a
District government contractor which is not of a merely technical or minimal nature.” The
operative question is whether the email disclosed “such serious errors” by the MPD management
“not debatable among reasonable people.” Wilburn, 957 A.2d at 925.
The Court finds no reasonable jury could conclude Plaintiff disclosed more than a
minimal violation of D.C. law. Neither in the email nor in his opposition does Plaintiff identify
what sections of the D.C. Code were purportedly violated by Chief Burke.6 Reasonable people
could certainly debate whether Chief Burke’s response constituted recognition of a “rival
organization,” or simply removed himself from an internal discussion amongst union members
as to how to proceed. To the extent Chief Burke’s response was a violation of D.C. law, Plaintiff
provides no basis in the record—or even argument in his opposition—on which the Court could
conclude that the error was “serious.” The vague and conclusory statements in the email in
question, which Plaintiff does not attempt to clarify, do not amount to a “protected disclosure”
for purposes of the Whistleblower Protection Act.
4. Plaintiff’s Interviews with Internal Affairs
Plaintiff finally asserts that certain statements made during his interviews with Lieutenant
Welch from Internal Affairs amounted to protected disclosures. The Plaintiff claims his
statements to Lieutenant Welch were new, protected disclosures because “[Welch] clearly did
not know about Plaintiff’s safety concerns regarding the barricade incident as well as the fact
that several MPD members had alerted the Plaintiff of these safety concerns,” as reflected by the
6
The Plaintiff does not contend that, and the Court does not consider whether, violations
of a collective bargaining agreement fall within the scope of D.C. Code § 1-615.513(D).
22
subsequent decision to “broaden[] of the scope of the investigation.” Pl.’s Opp’n at 26.
During Plaintiff’s first interview on June 19, 2009, the Plaintiff refused to answer any
questions regarding the barricade situation. See generally Pl.’s Ex. 18 (6/19/09 IAB Tr.).
Plaintiff and his FOP representative spent most of the interview arguing with Lieutenant Welch
regarding the way in which Plaintiff was contacted to set up the interview. Id. at 1-17. Once
Lieutenant Welch began to ask substantive questions, Plaintiff refused to answer any of the
inquiries, asserting they fell within the scope of Plaintiff’s role as Chairman of the FOP. Id. at
17-18. The Plaintiff flatly refused to discuss anything relating to the barricade situation, and did
not disclose any “safety concerns” to Lieutenant Welch.
Plaintiff’s second interview followed a similar course. See generally Pl.’s Ex. 19
(7/14/09 IAB Tr.). Plaintiff repeated his objections to the method of contact and initially refused
to answer any questions regarding the specifics of the FOP Safety Committee’s investigation,
including whether Plaintiff ever listened to the recording of the barricade incident. Id. at 1-15.
When asked if he believed any misconduct occurred during the barricade situation, and what he
was told in reference to the situation, Plaintiff responded
The, from what I was, from what I was told initially, I believe once I heard, one of
the reasons I asked the Safety Committee I believe that there’d been safety
violations that had occurred.
I heard several things, . . . I was told that we had an armed gunman in the house,
that the gas, teargas was ordered to be used, and that there was a great deal of
confusion, a lot of concerns by members of the ERT.
Id. at 17. Plaintiff explained that he did not believe what occurred at the barricade to be “serious
misconduct.” Id. When Lieutenant Welch specifically inquired as to whether the use of tear gas
at the barricade was excessive force, the Plaintiff explained “[I] had heard that the order was
given. I didn’t know what the instance was. That’s why we asked for the Safety Committee to
23
investigate.” Id.After much back and forth regarding Plaintiff’s refusal to answer questions concerning
acts the Plaintiff purported took in his “representational capacity,” Pl.’s Ex. 19 at 19-25, Plaintiff
admitted he disclosed the audio recording to the media, id. at 16. The only portion of the
Plaintiff’s responses that can be construed as addressing safety concerns reads, in relevant part,
as follows:
[T]he matter was brought to me as I’ve told you. People were very concerned that
someone was going to get hurt or killed, not, at that one or at the next one, they
started talking about the barricade, from ERT. One of my initial issues with the
barricade, this barricade was the fact that hostage negotiators had come out.
They’d been recently disbanded. . . . I, again think that this situation is serious
enough and dangerous enough that somebody’s going to get hurt. . . . Again, I
think this is an enormously serious issue. So, we, I asked for the Safety
Committee to investigate it. I asked for the Safety Committee to get the tape once
it came in.
Id. at 25-26; see also id. at 28 (“[B]ecause I thought what happened out there was so dangerous, I
was trying to get that story run.”).
Thus, the record indicates that the only specific safety concern disclosed by Plaintiff
during the interview was the fact the hostage negotiators were present at the barricade, despite
having recently been disbanded. Lieutenant Welch was well aware of this fact, having
interviewed Sergeant Kevin O’Bryant, the team leader of the hostage negotiators who was
present in the command post during the barricade, on June 9, 2009—ten days prior to Plaintiff’s
first interview. Pl.’s Ex. 20 (Final Investigative Report) at 5.
Furthermore, the Plaintiff provides no support for the assertion that the Plaintiff disclosed
previously unknown information which caused Lieutenant Welch to expand the scope of his
investigation. Lieutenant Welch conducted six interviews after Plaintiff’s July 14, 2009
interview: (1) Sergeant Yarbaugh; (2) Officer Brittingham; (3) Officer Hiram Rosario; (4) Ms.
24
Tammie Creamer; (5) Officer Cunningham; and (6) Assistant Chief Burke. See generally Pl.’s
Ex. 20. With respect to the four of these individuals, Lieutenant Welch initially interviewed each
person before the Plaintiff’s July 14 interview. Id. at 7 (Sgt. Yarbaugh’s first interview
conducted June 9); id. at 23 (Officer Brittingham’s first interview conducted on June 23); id. at
12 (Ms. Creamer’s first interview conducted on June 6); id. at 17 (Officer Cunningham’s first
interview conducted on June 9). Of the four follow-up interviews and two initial interviews
conducted after July 14, five were concerned only with the release of the audio transmission and
when the FOP Safety Committee initiated its investigation. Id. at 8 (Sgt. Yarbaugh); id. at 11(Officer Brittingham); id. at 12 (Officer Rosario); id. (Ms. Creamer); id. at 19-20 (Officer
Cunningham). Assistant Chief Burke was also the only individual to be asked questions
regarding the barricade incident itself. Id. at 17. But, there is nothing in the record to suggest
any information disclosed during the Plaintiff’s interview led Lieutenant Welch to interview
Assistant Chief Burke, ask Assistant Chief Burke questions regarding any particular issue, or
inquire as to any safety or security issues with any other witnesses. Ultimately, the Plaintiff
failed to identify any information regarding “safety concerns” disclosed during the interview that
Lieutenant Welch was not aware of at least a month before Plaintiff’s interview.
In sum, the Plaintiff did not make any “protected disclosures” for purposes of the
Whistleblower Protection Act. Any disclosure made in the context of initiating the FOP Safety
Committee investigation of the barricade incident was not made to a public body or supervisor as
defined by the statute. The Plaintiff’s arbitration testimony regarding the All Hands on Deck
initiative did not disclose any new information evidencing a violation of local law. The
Plaintiff’s June 19, 2009 email to his supervisors likewise failed to disclose information
evidencing more than a minimal violation of local law. Finally, the Plaintiff’s interviews with
25
Internal Affairs did not disclose any new information regarding purported safety concerns. No
reasonable jury could find the Plaintiff made any protected disclosures under the Whistleblower
Protection Act, therefore the Defendants are entitled to summary judgment on Count I of the
Third Amended Complaint.
C. First Amendment Retaliation Claims
A public employee seeking to make out a claim of First Amendment retaliation must
meet a four-factor test: (1) the public employee spoke as a citizen on a matter of public concern;
(2) the employee’s interest in speaking on matters of public concern outweighed the
government’s interest in promoting the efficiency of public services; (3) the employee’s speech
was a substantial or motivating factor in prompting the retaliatory act; and (4) the employee must
refute the government’s showing, if made, that it would have reached the same decision in the
absence of the protected speech. Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007);
Tao v. Freeh, 27 F.3d 635, 638–39 (D.C. Cir. 1994). The Plaintiff identifies four acts allegedly
taken in retaliation for his certain protected activities (outlined below): (1) the 2009 investigation
into the leak of radio transmission to the media; (2) sending Lieutenant Wilkins to “monitor” the
Plaintiff’s appearance at the Ward 5 community meeting; (3) revoking the Plaintiff’s police
powers on July 13, 2009; and (4) the 2011 investigation into the Plaintiff conducting a traffic
stop in a private vehicle. As set forth below, no reasonable jury could find the protected activity
identified by the Plaintiff was a substantial or motivating factor in prompting any of these
purportedly retaliatory acts. Accordingly, the Defendants are entitled to summary judgment on
the Plaintiff’s First Amendment retaliation claim, and the Court need not reach the question of
whether the Defendants are entitled to qualified immunity.
26
1. 2009 Internal Affairs Investigation
Initially, the Plaintiff contends that the 2009 investigation by Internal Affairs into the
release of the radio transmission from the barricade situation to the media “was undertaken
purely as retaliation for Chairman Baumann’s criticisms of departmental policies.” Pl.’s Opp’n
at 28. The Defendants argue in essence that the release of the recording was not protected
activity under the First Amendment, and in any event the Plaintiff failed to raise a genuine issue
of material fact as to the cause of the 2009 investigation. Because no reasonable jury could
conclude that any allegedly protected activity by the Plaintiff was a substantial or motivating
factor in 2009 investigation, the Court does not reach the question of whether the Plaintiff’s
release of the tape was itself protected activity.
In his opposition, the Plaintiff identifies four instances in which he claims he engaged in
protected First Amendment activity:
(1) his request that the union’s Safety Committee investigate the barricade
situation in which an order was made for the deployment of teargas and his
communication to the press regarding this issue;
(2) his testimony regarding the illegality of the Chief’s “All Hands on Deck”
program, in an arbitration conducted at police headquarters on June 17, 2009;
(3) his speech at a June 18, 2009 meeting of the District of Columbia Ward 5
Republicans concerning general issues related to crime in the District; and
(4) his statements to the press regarding the safety violations at the barricade
scene.7
Pl.’s Opp’n at 28. The Plaintiff suggests that the “timeline” supports his argument that the 2009
investigation “was retaliation for all of Chairman Baumann’s protected activities.” Id. at 29.
7
The Court understands this to mean the Plaintiff’s release of the audio tape to the media
as there is no other evidence in the record to demonstrate the Plaintiff made separate statements
to the press regarding the issue.
27
The record demonstrates otherwise.
MPD initiated an investigation into the unauthorized release of the radio transmission to
the media on June 6, 2009, alleging Officer Cunningham disclosed the recording without proper
authorization. Defs.’ Ex. K (6/6/2009 Incident Summ.). No reasonable jury could conclude the
2009 investigation was motivated by the Plaintiff’s initiation of the FOP Joint Safety Committee
investigation of the barricade situation simply because there is no evidence in the record to
suggest the Defendants even knew about the FOP referral prior to June 6. Moreover, Officer
Cunningham did not contact Officer Kevin Brittingham, the Chairman of the FOP Safety
Committee, to formally open the FOP investigation until at least June 7, the day after Internal
Affairs initiated its investigation into the release of the transmission. Pl.’s Ex. 2 at 213:17-18,
284:10-18. Similarly, nothing in the record indicates the Defendants knew the Plaintiff was
responsible for leaking the audio transmission until after initiating the investigation. To the
contrary, MPD initially identified Officer Cunningham as allegedly having released the
transmission. Defs.’ Ex. K. The undisputed evidence in the record indicates Internal Affairs did
not know (1) that the FOP Safety Committee had initiated an investigation into the barricade
situation; or (2) that the Plaintiff ever had access to the audio transmission until Officer
Cunningham’s June 9, 2009 interview with Internal Affairs. Pl.’s Ex. 20 at 18. No reasonable
jury could conclude from this record that the 2009 investigation was in retaliation for the
Plaintiff’s referral of the barricade situation to the FOP Safety Committee or the Plaintiff’s
release of the audio transmission.
Finally, the Plaintiff’s third and fourth incidents of protected speech—his testimony
during the All Hands on Deck arbitration and his appearance at the June 18, 2009 Ward 5
community meeting—undeniably took place after the Defendants initiated the 2009 Internal
28
Affairs investigation. Accordingly, the Plaintiff cannot show a causal link between the
investigation and the alleged incidents of protected activity. Ultimately, no reasonable jury
could conclude that the Plaintiff’s purported protected activity was a substantial or motivating
factor in prompting the 2009 Internal Affairs investigation.
2. Lieutenant Wilkins’ “Monitoring” of the Ward 5 Republicans Meeting
The second discrete claim within the Plaintiff’s First Amendment claim is that sending
Lieutenant Wilkins to “monitor” the Plaintiff’s appearance at the Ward 5 Republicans meeting
on June 18, 2009 was unlawful retaliation. The Plaintiff makes little attempt to show that
sending Lieutenant Wilkins was in retaliation for any of the protected activity identified in the
Plaintiff’s opposition, except to note that “[t]he MPD ‘monitoring’ occurred the day after the
plaintiff testified against the MPD in the ‘All Hands on Deck’ arbitration.” Pl.’s Opp’n at 36.
Considering the record as a whole, no reasonable jury could conclude Lieutenant Wilkins was
sent to the meeting in retaliation for the Plaintiff’s arbitration testimony.
At some point prior to June 16, an email was sent out over the listserve for the MPD 5th
District indicating that the Plaintiff would be speaking during the June 18, 2009 Ward 5
community meeting, hosted by the Ward 5 Republicans. See Pl.’s Ex. 15 at 1; Pl.’s Ex. 16 at 2.
On June 15, 2009, Diane Groomes emailed Yvonne Smith, both of MPD, asking for a copy of
the listserve email and indicating they “[m]ay need to send an MPD rep” to the meeting. Pl.’s
Ex. 15. On June 18, Mario Patrizio of MPD sent an email to Ms. Groomes indicating that
“Lieutenant Wilkins and Janifer will be there. Just as observers. I gave Lieutenant Wilkins our
latest crime numbers which all look good just in case.” Pl.’s Ex. 16 at 1. Several days after the
meeting, Diane Groomes emailed Mario Patrizio asking for the summary of the meeting. Pl.’s
Ex. 17. The record indicates it was not unusual for MPD officers to attend community meetings
29
at which the Plaintiff spoke. Defs.’ Ex. A (Pl.’s Dep. Tr.) at 230:14-17, 233:2-6.
Nothing in the correspondence prior to the meeting---or anything else in the record---
suggests Lieutenant Wilkins was sent to the meeting in retaliation for the Plaintiff’s testimony
regarding the All Hands on Deck initiative the day before. In fact, there is no evidence to
suggest that the MPD officials involved in sending Lieutenant Wilkins to the Ward 5 meeting
were aware of the Plaintiff’s involvement in the arbitration, or that they were somehow
influenced by individuals within MPD that had such knowledge. No reasonable jury could
conclude from this record that the “monitoring” of the Plaintiff’s speech to the Ward 5
Republicans was retaliatory in the manner suggested by the Plaintiff.8
3. Revocation of Plaintiff’s Police Powers
Third, the Plaintiff argues that the revocation of his police powers on July 13, 2009 was
in retaliation for protected activity. Pl.’s Opp’n at 37. Notably absent from the Plaintiff’s
opposition is any claim as to what protected activity motivated the purportedly retaliatory action.
Instead, the Plaintiff rests entirely on the PERB Hearing Examiner’s finding that “the
Respondents failed to present a legitimate reason to justify sanctioning Chairman Baumann . . .
for abstaining from in-service training,” and “[b]ased on the record as a whole, it is fair to
conclude that the predominant motive for the Respondents’ unprecedented and unilateral actions
. . . [was] to retaliate for their assertive activism on behalf of the FOP and its members.” Pl.’s
8
The Plaintiff attempts to argue that “[t]he defendants’ admitted ‘monitoring’ of
Plaintiff violated his First Amendment rights, as confirmed by D.C. law,” citing the Police
Investigations Concerning First Amendment Activities Act of 2004, D.C. Code § 5-333.01 et
seq. The Court dismissed this claim to the extent the Plaintiff sought compensatory and other
damages in a prior memorandum opinion. Baumann v. District of Columbia, 744 F. Supp. 2d
216, 226-228 (D.D.C. 2010). Moreover, even if sending Lieutenant Wilkins to the Ward 5
meeting was not expressly authorized by the act, the Plaintiff fails to articulate (1) why this
amounted to a violation of the act; or (2) why a violation of the act is per se a violation of the
First Amendment.
30
Ex. 29 (Hearing Examiner’s Report & Recomm.) at 28.9 The Plaintiff conveniently omits why
the Hearing Examiner reached this conclusion. The relationship between the Plaintiff and
Assistant Chief Robinson, the individual that single-handedly prompted the revocation of
Plaintiff’s police powers, is critical to understanding the Hearing Examiner’s findings:
Prior to being elected as the FOP chairman, Officer Baumann served as chief
steward in the 7th District under Assistant Chief Robinson’s command. Clearly,
there was no love lost between the two. Thus, the Chairman testified that he had
been publicly critical of the Assistant Chief’s alleged involvement in a potential
criminal matter and about a drunken driving arrest. He also asked that the
Assistant Chief be called to task before he retired.
Id. at 7-8. With this background, the Hearing Examiner concluded:
[T]here is a paper trail that documents A.C. Robinson’s keen interest in
pinpointing the Chairman’s and Steward’s failure to attend training. On June 30,
2009, A. C. Robinson received a list naming 136 officers who had not completed
training by that date. Of that number, he cherry-picked only those who had not
attended ASP/CPR/AED training. It was not coincidental that only 4 names
appeared on the short list --Chairman Baumann, Steward Burton and two others
whose names were mistakenly on the list, but suffered no sanctions when their
correct status was determined. On the same day, the A.C. sent a memo to Chief
Lanier and others advising that those who had not completed that training by July
2 would be investigated and have their police powers revoked until they were
recertified. . . . Little speculation is required to find the A.C.’s motives for taking
such singular steps in light of the Chairman’s outspoken and public criticism of
him.
Id. at 25-26.
The Plaintiff has not alleged that any of the protected activity at issue in this case
involved statements concerning Assistant Chief Robinson or otherwise overlapped with the
union-related activity at issue in the PERB hearing. Thus, even if the Defendants’ did not have a
legitimate reason for revoking the Plaintiff’s police powers, the Hearing Examiner’s finding
9
Apart from misconstruing the Hearing Examiner’s findings, the Plaintiff’s reliance on
the PERB hearing outcome is procedurally problematic in light of the burden-shifting analysis
employed by the Hearing Examiner, which is not applicable to this litigation. See Pl.’s Ex. 29 at
20.
31
demonstrates the allegedly retaliatory action was not motivated by any of the protected activity at
issue in this case.
The Plaintiff also argues that “[t]his retaliatory action which occurred right after the
protected activities of Chairman Baumann provides some evidence that suggests an improper,
retaliatory motive for the actions.” Pl.’s Opp’n at 38. Yet again, the Plaintiff fails to identify
what protected activity occurred “right” before the revocation of his police powers. To the
extent the Plaintiff is referring to the denial of his motion for a temporary restraining order in this
case (as his opposition implies), the Court notes that Assistant Chief Robinson issued a memo
indicating the Plaintiff and Steward Burton would be subject to action on June 30, 2009—the day
after the Plaintiff filed his motion and eleven days before the Court issued its ruling. Pl.’s Ex. 29
at 26. Assistant Chief Robinson initiated the process before the Plaintiff filed his Complaint,
reflecting the fact that Chief Robinson’s was not motivated by this lawsuit. On this record, no
reasonable jury could conclude the Plaintiff’s police powers were revoked because of any
protected activity at issue in this case.
4. 2011 Traffic Stop Investigation
Finally, the Plaintiff asserts that the 2011 investigation into the Plaintiff conducting a
traffic stop while driving a private vehicle “is part of a pattern and practice of intimidation and
retaliation employed by the Defendants in this matter against the Plaintiff.” Pl.’s Opp’n at 38.
Apart from this vague assertion in his pleading, the Plaintiff does not identify any other acts that
form part of this “pattern or practice.” Moreover, the Plaintiff concedes the Defendants’
argument that the lapse of time between this investigation and the last of the Plaintiff’s protected
activities does not support an inference of causation. Hopkins v. Women's Div., Gen. Bd. of
Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit
32
that when a plaintiff files an opposition to a dispositive motion and addresses only certain
arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded.”). The 2011 investigation was initiated on May 25, 2011. Defs.’ Ex. N
(7/19/11 Final Invest. Report) at 1. The last protected activity identified by the Plaintiff in his
opposition occurred on June 18, 2009. “Action taken” as here, over twenty-three months later,
“suggests, by itself, no causality at all.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274
(2001).
The Plaintiff’s causality argument thus rests entirely on the fact that Assistant Chief
Anzallo informed Chief Lanier of the investigation during his daily meeting with the Chief. Pl.’s
Ex. 25 (Anzallo Dep. Tr.) at 68:22-69:14. The Plaintiff does not argue, and the transcript does
not indicate, when this conversation took place. Id. at 69:3-7 (indicating Assistant Chief Anzallo
mentioned the issue to Chief Lanier “probably after” he receive a copy of Ms. Taylor’s email
reporting the incident). Furthermore, Assistant Chief Anzallo specifically testified that Chief
Lanier did not have any response to Anzallo’s comment. Id. at 69:8-9. The record does not
support the Plaintiff’s allegation that Chief Lanier was involved in “making decisions to
investigate the Plaintiff” as the Plaintiff alleges. Pl.’s Opp’n at 39. Even if she was involved in
the process, the Plaintiff fails to articulate why Chief Lanier’s involvement by itself is evidence
the investigation was motivated by the protected activity the Plaintiff engaged in nearly two
years prior. Based on this record, no reasonable jury could conclude the 2011 investigation was
motivated by the protected activity at issue in this case.
D. Validity of General Order 204.1
Finally, the Plaintiff alleges that MPD General Order 204.1 constitutes an
unconstitutional prior restraint as applied to the Plaintiff in this case. MPD charged the Plaintiff
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with violating Parts VI-C-1 and 7 of General Order 204.01, which provide that “[c]onfidential
information that may jeopardize the successful conclusion of an investigation” cannot be
released to the public, and “[a]ll documents not listed as releasable shall be closed to public
inspection.” MPD alleged the Plaintiff violated this order by releasing the audio transmission to
the media “without prior written approval from the Office of Unified Communications” or MPD.
Pl.’s Ex. 21 (Notice of Proposed Adverse Act) at 1. The Plaintiff alleges the Order is
unconstitutional because it “conditions the exercise of free speech on permission by a police
official at the rank of lieutenant or above.” Pl.’s Opp’n at 41. The Defendants respond by
emphasizing that the Plaintiff fails to explain how the Order gives MPD unbridled discretion,
and that the Order on its face applies only when MPD officers “are communicating with the
media in an official capacity.” Defs.’ Reply at 7.
Both parties’ arguments miss the mark. First, the restriction on releasing documents “not
listed as releasable” is not limited to MPD members acting in their official capacity. Pl.’s Ex. J
at 4. The portion of the Order the Defendants cite in their motion is entitled “Guidelines for
members participating in format media interviews or as guests on television or radio broadcasts,”
but does not reference the earlier prohibition on releasing certain documents. Id. at 6-7. Second,
the Plaintiff improperly relies on the “presumption of invalidity” normally attended to prior
restraint claims. Pl.’s Opp’n at 41. “[T]he area of unregulable speech available to public
employees is narrower than that available to the public at large, and [] broad clauses [restricting
employees’ speech] have been upheld in the past.” Nat’l Treasury Employees Union v. Kurtz,
600 F.2d 984, 987 n.6 (D.C. Cir. 1979). “Restraints on the speech of government employees on
matters of public concern are governed by a balancing test”:
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[Restraints] are permissible where the government interest in promoting the
efficiency of the public services it performs through its employees outweighs the
interests of prospective speakers and their audiences in free dissemination of the
speakers’ views. Where a restraint is accomplished through a generally
applicable statute or regulation, as opposed to a particularized disciplinary action,
[the court] must also make sure that the regulation’s sweep is reasonably
necessary to protect the efficiency of the public service.
Weaver v. U.S. Information Agency, 87 F.3d 1429, 1439 (D.C. Cir. 1996) (describing the test set
forth in United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 466, 474 (1995), and
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). Because neither party employed the
correct framework to evaluate the Plaintiff’s claim, the Court shall deny the Defendants’ motion
without prejudice as to the validity of General Order 204.01 and require the parties to submit
further briefing.
The Plaintiff also alleges in his opposition that the Order is unconstitutionally vague and
overbroad. The Third Amended Complaint does not raise any challenges to the Order apart from
prior restraint, Third Am. Compl. ¶ 54, and the Plaintiff cannot amend his complaint by asserting
new claims in opposition to a dispositive motion. Arbitraje Casa de Cambio, S.A. de C.V. v. U.S.
Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003). Accordingly, the Court does not reach
these arguments.
IV. CONCLUSION
For the foregoing reasons, the Court finds the Defendants are entitled to summary
judgment as to all but one of the Plaintiff’s claims. The Plaintiff’s claims are not pre-empted by
the Comprehensive Merit Personnel Act. However, no reasonable jury could conclude from the
record that the Plaintiff made any protected disclosures for purposes of the District of Columbia
Whistleblower Protection Act. Furthermore, no reasonably jury could conclude the Plaintiff’s
purported protected activities were substantial or motivating factors in prompting any of the
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allegedly retaliatory acts the Plaintiff claims violated his First Amendment rights. Finally,
because neither party employed the proper legal framework for evaluating the Plaintiff’s prior
restraint challenge to MPD General Order 204.01 as applied to the Plaintiff, the Court shall deny
summary judgment, but require the parties to submit further briefing. Accordingly, the
Defendants’ [87] Motion for Summary Judgment is GRANTED IN PART and DENIED IN
PART WITHOUT PREJUDICE.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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