Bowyer v. District of Columbia , 910 F. Supp. 2d 173 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GREGORY BOWYER, et al.,
Plaintiffs,
Civil Action No. 09-319 (BAH)
v.
Judge Beryl A. Howell
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
The plaintiffs Gregory Bowyer and Gerald Pennington are two African American
firefighters in the District of Columbia who bring this action against the defendants District of
Columbia (“the District”), Dennis L. Rubin, and Gary Palmer, Jr. under 42 U.S.C. § 1983 and the
District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.51, et seq. Common to
all three of their claims is the plaintiffs’ contention that the defendants retaliated against them for
speaking out about a variety of issues within the District of Columbia Fire and Emergency
Medical Services (“DCFEMS”). Over the course of nearly two years, the plaintiffs allege that
they complained within and outside the DCFEMS about what they believed was racial hostility
and discrimination, the mishandling and subsequent cover-up of fire investigations, and general
professional misconduct. The plaintiffs now claim that their complaints were met with swift and
multifarious retaliation by the defendants in the form of disciplinary actions, removal of
privileges and responsibilities, and other attempts to ostracize and isolate the plaintiffs from the
rest of their unit. All three defendants have moved for summary judgment.
1
I. BACKGROUND
The plaintiffs are both “career firefighter[s] and fire investigator[s] currently employed
by the DCFEMS.” Compl. for Declaratory, Injunctive, & Monetary Relief & Jury Demand
(“Compl.”) ¶¶ 7–8, ECF No. 1. In particular, both of the plaintiffs worked for many years,
beginning in 2001, as fire investigators in the Fire Investigations Unit (“FIU), id. ¶ 12, which is a
specialized unit within the DCFEMS responsible for investigating the origins and causes of all
fires that occur in the District, investigating arsons, and enforcing compliance with fire-related
laws and regulations. 1
All parties agree that from 2003 to 2007, the racial makeup of the FIU was 100% African
American. Def. D.C.’s Statement of Undisputed Facts (“D.C. Facts”) ¶ 8, ECF No. 49-1; Pls.’
Statement of Disputed Facts in Response to D.C. (“Pls.’ D.C. Facts”) ¶ 8, ECF No. 55-1. 2 In
April 2007, defendant Rubin became the Fire Chief of DCFEMS, and Rubin promoted defendant
Palmer to the position of Deputy Chief and Fire Marshal. D.C. Facts ¶ 9; Pls.’ Mem. of P. & A.
in Opp’n to Def. D.C.’s Mot. Summ. J. (“Pls.’ D.C. Opp’n”) at 2, ECF No. 55. The plaintiffs
claim that defendant Rubin “implemented a race based policy under which he assigned more
white personnel to the FIU to increase the percentage of white investigators.” Pls.’ D.C. Facts
¶ 9. To effectuate this policy, the plaintiffs claim that the defendants “relaxed the requirements
and standards for promotion to the FIU in order to ensure the addition of the white candidates it
assigned to the unit.” Id. More particularly, the plaintiffs claim that “[n]one of the white
firefighters whom the Department assigned to the [FIU] pursuant to this policy met the
1
See DCFEMS Office of the Fire Marshal, http://fems.dc.gov/DC/FEMS/Divisions/Office+of+the+Fire+Marshal
(last accessed Dec. 20, 2012).
2
Although the plaintiffs admit that the composition of the FIU was 100% African American in 2007, see Pl.’s D.C.
Facts ¶ 8, they allege in their Complaint that composition of the FIU was 70% African American in 2007. See
Comp. ¶ 15. The Court notes this discrepancy and relies, for purposes of the pending motions for summary
judgment, on the statements of facts submitted by the parties.
2
qualification requirements for membership in the [FIU],” and the white firefighters in the FIU
“have failed portions of the written, physical, or psychological examinations required for
assignment to the position of fire investigator.” Compl. ¶ 13. With respect to the alleged
relaxation of requirements and standards in the FIU, the plaintiffs claim specifically that the
defendants (1) lowered the minimum number of years of experience required to become an
investigator, from five years to three years; (2) increased the maximum allowable body fat
percentage for fire investigators; (3) loosened the criminal background checks and psychiatric
checks for new investigators; (4) changed the DCFEMS shift work and division to attract white
candidates; (5) eliminated the formerly required 180-day investigator-training course and exam;
and (6) assigned overtime disproportionately to white members of the FIU. Pls.’ D.C. Opp’n at
36–37.
As a result of this alleged policy, the plaintiffs claim that the presence of African
Americans in the FIU after 2007 dropped precipitously to 40%. See Compl. ¶ 15; see also Pls.’
Ex. 19, ECF No. 55-2 (purporting to list “Active Members in DCFEMS FIU”). The plaintiffs
allege that “[t]he policy of assigning new personnel to the FIU was based solely on race,” that
“all of the supervisors in FIU are [now] white,” and that, in addition to the racial composition,
the defendants’ alleged policy has “also resulted in a substantial decline in DCFEMS’ ability to
determine accurately the cause and origin of fires and to perform accurate follow-up
investigations of potential arsons . . . given the assignment of unqualified personnel [to] this
unit.” Compl. ¶ 15. It is this alleged “assignment of unqualified [white] firefighters to important
roles in FIU” and the resulting alleged “serious problems with fire investigations” that is the
starting point for the events that are at issue in this case. See id. ¶¶ 16–17.
3
The plaintiffs eventually filed internal Equal Employment Opportunity (“EEO”)
complaints with the DCFEMS in June 2008 related to this alleged discriminatory policy, in
which the plaintiffs complained of racial discrimination in the FIU, race-based assignments, and
preferential treatment for white investigators. See id. ¶ 37; see also Pls.’ Exs. 37–38, ECF No.
55-2. The plaintiffs also say that they repeatedly raised concerns to their superiors about the
racial disparities within the FIU and the deleterious effects that the disparities were having upon
fire investigations. See, e.g., Pls.’ D.C. Opp’n at 18–19.
Beginning sometime in 2007, in addition to the explicitly race-based issues, the plaintiffs
allege that they began raising concerns to their superiors about a broad range of other perceived
improprieties within the DCFEMS, and the FIU in particular. See, e.g., Pls.’ D.C. Opp’n at 18–
26. The plaintiffs allege that they raised their concerns to “their direct supervisor Sergeant
Phillip Proctor, Defendant Palmer, Defendant Rubin, and Assistant Fire Chief Brian Lee.”
Compl. ¶ 17. The Court will discuss in further detail the issues that arose within the FIU, how
the plaintiffs say they spoke out about those issues, and the alleged retaliation that followed.
A. Alleged Misconduct Within the FIU
During 2006, a number of firefighters were temporarily detailed to the FIU, and
DCFEMS hired two outside instructors to provide instruction on fire investigation to the newly
detailed firefighters. Def. D.C.’s Supplemental Statement of Undisputed Facts (“D.C. Supp.
Facts”) ¶¶ 21–24, ECF No. 59-2. These outside instructors provided two weeks of instruction
and administered an exam to the firefighters at the end of the two weeks. Id. ¶ 24. Sgt. Proctor
also provided an additional week of training but decided not to administer any exam. Id. ¶ 25.
Before deciding not to administer an exam, Sgt. Proctor inadvertently left a copy of an exam he
planned to administer in a computer room printer, which was then obtained by a number of the
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detailed firefighters. Id. ¶ 26. After learning of this incident, Sgt. Proctor decided not to
administer a test; informed his colleague, Lieutenant Robert Pearson, of the incident; and as a
result Lt. Pearson administered a test to the detailed firefighters that differed from the one
prepared by Sgt. Proctor. Id. The defendants maintain that, in addition to the fact that the
administered test was different than the test obtained by the firefighters, the administered test
also “had no bearing on whether these detailed firefighters would be admitted into FIU” and did
not “affect[] the assignment or pay of the temporary fire investigators.” Id. ¶¶ 27, 36. A
subsequent internal investigation of the matter concluded that Sgt. Proctor did not assist the
incoming fire investigators in cheating on the exam. Id. ¶ 34. Nevertheless, the plaintiffs say
that they complained to defendant Palmer that Sgt. Proctor had “helped white candidates cheat
on the examinations required to become fire investigators.” Pls.’ D.C. Opp’n at 4; Compl. ¶ 18.
In addition to the alleged cheating incident, the plaintiffs say that they complained to
their superiors at the DCFEMS in 2007 about the conduct of Lieutenant Craig Duck, who was at
that time the supervisor of the FIU. See Compl. ¶ 19. According to the plaintiffs, Lt. Duck was
engaging in two separate types of misconduct. First, he was allegedly attempting to create a
hostile work environment for African Americans in the FIU by referring to the white
investigators as his “team,” reassigning follow-up investigations exclusively to these white
investigators, and pressuring white investigators to stop associating with “Pennington’s team,”
which the plaintiffs claim referred to the African American investigators. Id. ¶¶ 19–20. The
plaintiffs allege that Lt. Duck’s behavior “created an atmosphere of tension and mistrust within
the FIU,” which allegedly made it “nearly impossible for [the plaintiffs] to successfully complete
the origin-and-cause investigations to which they were assigned.” Id. ¶ 20. The plaintiffs
specifically contend that they complained to Lt. Duck directly on September 28, 2007, about the
5
preferential treatment being given to white investigators, but the plaintiffs allege that Lt. Duck
“denied Plaintiffs’ accusations, and the preferential treatment of white members of the FIU
continued.” Id. ¶ 21.
The plaintiffs also say that they complained about instances of what could be termed
fraud, waste, or abuse by Lt. Duck. In June 2007, the plaintiffs allege that they complained to
defendant Palmer, Sgt. Proctor, and Assistant Fire Chief Lee that “Lt. Duck was manipulating
fire-investigation data and reports in order to justify the purchase of newer or fancier equipment,
which he referred to as ‘toys.’” Compl. ¶ 29. The plaintiffs say that they reported that “Lt. Duck
overstated the utilization of particular pieces of equipment in hopes of hastening their
replacement.” Id.; see also Pls.’ D.C. Opp’n at 22 (contending that Lt. Duck “instruct[ed]
subordinates to say that a tank of bottled air had been used for four hours when it had actually
been used for ten minutes” and “list[ed] use of equipment that the unit never had”).
B. Allegedly Mishandled Fire Investigations
The bulk of the plaintiffs’ alleged complaints to their superiors centered on what they
believe was a series of mishandled fire-related investigations from 2007–2008. As discussed
above, the plaintiffs generally attribute these “botched” investigations to what they claim was a
race-based policy of bringing in inexperienced and unqualified white firefighters to the FIU to
conduct fire investigations. See Compl. ¶¶ 15–16; see also Pls.’ D.C. Opp’n at 12.
1. Eastern Market Fire
The first and most high profile of these fire investigations began on April 30, 2007, when
a three-alarm fire destroyed the butcher, bakery, and fishmonger stalls at the District’s historic
Eastern Market. Compl. ¶ 23. See generally Keith L. Alexander, Michelle Boorstein, & Allison
Klein, Beloved Eastern Market, Library in Georgetown Ravaged by Fires, WASH. POST, May 1,
2007, at A1. Lt. Duck assigned fire investigator Keith Byrd—whom the plaintiffs allege was “an
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inexperienced white investigator”—to lead the investigation. Compl. ¶ 23. Within 24 hours of
the blaze, Chief Rubin commented to the press that “he was ‘90 percent’ sure last night that the
Eastern Market fire was accidental, probably caused by an electrical problem.” Alexander, et al.,
supra; see also Compl. ¶ 23. Byrd subsequently issued a report that came to the same
conclusion: the fire was an accident. Compl. ¶ 23.
The plaintiffs allege, however, that the DCFEMS “had evidence suggesting that a serial
arsonist had intentionally set the Eastern Market fire,” namely, the fact that the DCFEMS “had
recently extinguished an unusually large number of fires set in dumpsters within a four-block
radius of Eastern Market, including several dumpster fires on the same night as the Eastern
Market fire.” Id. ¶ 24. Furthermore, a report issued by the federal Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) in the months after the fire ruled out electrical causes. Id.
The plaintiffs allege that, after the ATF report was released, “Sgt. Proctor changed Mr. Byrd’s
original fire report from an electrical cause to an undetermined cause.” Id. The plaintiffs
believed that the fire was intentionally set, and they claim that Sgt. Proctor shared their belief but
“directed them to keep quiet because Defendant Rubin had already told the media the fire’s
origin was electrical.” Id. The plaintiffs also allege that a suspect in the Eastern Market fire was
arrested in May 2007 but was never charged. Id. ¶ 25.
In December 2007, media reports indicated that the cause of the Eastern Market fire was
still publicly considered a “continuing mystery,” citing that ATF had ruled out electrical causes,
the DCFEMS officially considered the cause “undetermined,” and no evidence had surfaced of
arson. See Elissa Silverman, Eastern Market Fire Still at Issue ATF, D.C. Fire Chief Disagree
on Cause, WASH. POST, Dec. 23, 2007, at C1. The plaintiffs allege, however, that their own
investigation “led them to conclude the fire was caused by arson.” Compl. ¶ 25. In the end, an
7
eleven-month investigation into the Eastern Market fire in 2009, conducted by the DCFEMS and
“other experts in the field of fire and forensic investigations” concluded that the fire was “a result
of an electrical faulting of the outside electrical circuit supplying the trash compactor.” See
Gov’t of the Dist. of Columbia, Fire & Emergency Servs. Dep’t, Supplemental Fire Investigation
Report 2 (Dec. 16, 2009), available at http://www.washingtonpost.com/wp-
srv/metro/documents/easternmarketfire.pdf. This 2009 report appears to have been the final
word on the matter.
2. Permit and Fire Code Violations
While the Eastern Market fire investigation was ongoing, in late June or early July 2007,
the plaintiffs say that they informed defendant Palmer that Sgt. Proctor “had engaged in
misconduct during the inspection of a nightclub, the K St. Lounge, by allowing the business to
avoid penalties for clear safety and permit violations.” Compl. ¶ 29. The plaintiffs elaborate in
their briefing that the nightclub was “being operated over capacity” and the plaintiffs say that, as
a part of the “club zone taskforce,” they “found numerous violations at the club, ultimately
totaling $150,000 in fines.” Pls.’ D.C. Opp’n at 22. The plaintiffs further contend, however, that
“[Sgt.] Proctor’s interference and conduct resulted in the owner paying reduced . . . fines of
$17,000.” Id. After this incident, the plaintiffs were removed from the club zone task force. See
Decl. of Gregory Bowyer (“Bowyer Decl.”) ¶ 18, ECF No. 55-2; Decl. of Gerald Pennington
(“Pennington Decl.”) ¶ 22, ECF No. 55-2.
In June 2007, a third incident occurred that the plaintiffs believe was mishandled by the
DCFEMS. The DC Fire Marshal’s office received a complaint of illegal use of propane at the
Barry Farm’s Goodman-League basketball tournament in Southeast D.C and sent the plaintiffs to
investigate. See Pls.’ D.C. Opp’n at 7; Pls.’ Ex. 3, at 292–93, ECF No. 55-2. The plaintiffs
documented that food vendors at the tournament were using propane tanks without the required
8
permit and were using the tanks “in a very reckless and negligent manner” by storing the tanks
“a couple of feet from gasoline in cans . . . near children and civilians.” Pls.’ Ex. 3, at 293–94.
Initially, the plaintiffs let the vendors off with a warning, notifying them that they needed to
obtain the proper permits, but when they returned later, the plaintiffs claim that the same
violations persisted. Id. at 294–95. The plaintiffs and the police officer accompanying them
decided that arresting the event organizer was imprudent, given the atmosphere of the event, and
they tried instead to get his information so that an arrest warrant could be issued later. Id. at 297.
When the event organizer refused to provide any information to the plaintiffs, Pennington
“signal[ed] an alert that there was increasing tension as a result of the situation.” Pls.’ D.C
Opp’n at 7. What followed between plaintiff Bowyer and the event organizer remains unclear.
The next day, however, the event organizer made a formal complaint about plaintiff
Bowyer to defendant Palmer, and Palmer instructed Bowyer to write a “detailed report, point by
point, addressing the actions at Barry Farms Basketball tournament.” See Pls.’ Ex. 32, ECF No.
55-2; Pls.’ D.C. Opp’n at 7. The plaintiffs also allege that, after the vendor filed this complaint,
defendant Palmer “subject[ed] them to investigations by Internal Affairs and the Office of the
Inspector General (‘OIG’)” and “caus[ed] a Metropolitan Police Department detective to issue a
baseless warrant for Mr. Bowyer’s arrest.” Compl. ¶ 29. The plaintiffs allege that Bowyer later
met with D.C. Councilmember Phil Mendelson “to discuss the Department’s mishandling of the
incident in its decision not to pursue an arrest warrant for [the event organizer] and to raise safety
concerns about illegal propane tank usage at Barry Farms.” Pls.’ D.C. Opp’n at 8.
3. The Bridgewater Case
The next incident that the plaintiffs claim was mishandled began in July 2007 when a
man named Timothy Bridgewater sold illegal fireworks to plaintiff Pennington. See D.C. Facts
¶¶ 11–12. A search of Bridgewater’s vehicle uncovered illegal fireworks as well as a handgun,
9
resulting in his arrest. Id. Although plaintiff Pennington believed that the owner of the
fireworks stand should also be arrested because he had directed Pennington to Bridgewater to
purchase the illegal fireworks, D.C. Assistant Attorney General (“AAG”) Lynette Collins
counseled against such an arrest because she did not believe there was sufficient probable cause.
Id. ¶¶ 13–15. An FIU investigator named James Taylor “papered” the investigation with several
documents, which included a series of photographs from the scene of the Bridgewater arrest
taken by FIU Investigator Scott Ford and Firefighter Keith Byrd. Id. ¶¶ 17–18. 3 The documents
collected by Taylor, however, did not include photographs taken by plaintiff Bowyer at the scene
with his personal camera that showed that the firearm in Bridgewater’s vehicle was located in a
book bag in the rear seat of the vehicle. See D.C. Facts ¶ 19; Pls.’ D.C. Facts ¶ 19.
According to AAG Collins, plaintiff Pennington expressed concerns to her about the way
Investigator Taylor was handling the investigation, and Pennington later chose to recuse himself
from the Bridgewater case “based on his belief that Taylor should not be involved.” Decl. of
Lynette Collins (“Collins Decl.”) ¶¶ 15–18, 21, ECF No. 49-2. The plaintiffs, however, maintain
that Pennington wanted to recuse himself from testifying “because of the underlying merits in the
case” and his concerns about “the integrity of the case.” Pls.’ D.C. Facts ¶ 21. In particular, the
plaintiffs say they raised what they believed were a number of “holes in the case,” id. ¶ 22,
including: (1) the photographs taken by plaintiff Bowyer of the scene, using his personal
camera, were absent from the case file, see Pls.’ Ex. 3, at 127; (2) there were discrepancies with
the chain of custody for the handgun found in Bridgewater’s car, see id. at 128; and (3) “the
3
Incidentally, the plaintiffs state that they “encouraged the use of FIU Investigator Taylor to paper the case since he
was a junior member and it was a way for [him] to get experience in the process.” Pennington Decl. ¶ 51. This
encouragement by the plaintiffs is difficult to reconcile with one of the central theories of the plaintiffs’ case: that
the defendants acted improperly by assigning inexperienced, white investigators to investigate and paper cases.
10
fireworks, cash and book bag in the case were missing from the evidence locker,” Pls.’ D.C.
Facts ¶ 31.
The Assistant United States Attorney (“AUSA”) assigned to prosecute Bridgewater, Matt
Graves, eventually decided to dismiss the case. Collins Decl. ¶ 20; Pls.’ D.C. Opp’n at 9. AAG
Collins avers that AUSA Graves indicated to her that he decided to dismiss the charges against
Bridgewater “because of infighting involving FIU investigator Pennington and the lack of
cooperation between FIU investigators.” Collins Decl. ¶ 22. The plaintiffs, however, contend
that “it is highly likely that AUSA Graves dismissed the charges because of the holes in the case
that Investigator Pennington brought to his attention.” Pls.’ D.C. Facts ¶ 22.
Despite the federal government’s decision not to prosecute, the D.C. Office of the
Attorney General (“OAG”) decided to pursue criminal charges of its own against Bridgewater,
and AAG Collins was assigned to prosecute the case. Collins Decl. ¶¶ 23–24. That trial began
on February 20, 2008. Id. ¶ 27. AAG Collins avers that she was unaware of the photographs
taken by plaintiff Bowyer on his personal camera at the scene of Bridgewater’s arrest. Id. ¶ 39.
The plaintiffs dispute this statement and contend that “AAG Collins was aware of the existence
of Plaintiff Bowyer’s photographs but was attempting to prosecute the Bridgewater case without
this evidence.” Pls.’ D.C. Facts ¶ 29. 4 Regardless, in a pretrial hearing in the Bridgewater case,
defense counsel notified the court that the government had failed to disclose the photographs
taken by plaintiff Bowyer. Collins Decl. ¶ 34. AAG Collins avers that, in a break during this
same pretrial hearing, plaintiff Bowyer “disclosed to [her], for the first time, that he had used his
personal camera to take photos of the scene of the Bridgewater offense.” Id. ¶ 42. The
4
In support of their assertion, the plaintiffs contend more specifically that plaintiff Pennington told AAG Collins
about the photographs “in a witness conference” in AAG Collins’s office and that plaintiff Bowyer “had given the
photographs to FEMS General Counsel Marceline Alexander and they appeared during the Bridgewater debriefing
on the projector screen for Collins and all in the debriefing at the time to see.” Pls.’ D.C. Facts ¶¶ 29, 32.
11
photographs were turned over to defense counsel, but the court also conducted a hearing on the
issue of the photographs. See id. ¶¶ 43, 45. At the hearing, plaintiff Bowyer “testified that he
had previously informed [AAG Collins], his superiors and AUSA Graves of the photographs of
the scene taken by him.” Id. ¶ 46.
The parties dispute the veracity of plaintiff Bowyer’s testimony in the Bridgewater case
regarding the photographs. The plaintiffs insist that the hearing testimony was truthful, and
plaintiff Bowyer even filed an ethics complaint against AAG Collins with the D.C. Bar Counsel
for what the plaintiffs characterize as “her unethical conduct during the Bridgewater trial and
falsely accusing [Bowyer] of perjury.” Pls.’ D.C. Facts ¶ 37. 5 The defendants and AAG Collins,
however, insist that the testimony was false. After the hearing testimony was given, AAG
Collins filed a complaint about plaintiff Bowyer with AAG Barbara Chesser and AAG Collins’s
superior at the OAG, Deputy Attorney General Robert Hildum. See D.C. Facts ¶¶ 35, 39. Based
on AAG Collins’s complaints and similar complaints from another prosecutor in a separate case
discussed below, the OAG decided to bar both of the plaintiffs from testifying in future OAG
prosecutions (known as being placed on the “Lewis List”), and Hildum informed defendant
Rubin of this decision in person on August 21, 2008 and via letters dated October 27–28, 2008.
See Pls.’ D.C. Facts ¶ 39; Decl. of Dennis L. Rubin (“Rubin Decl.”) ¶¶ 7–13, ECF No. 59-3; see
also Pls.’ Exs. 34–35, ECF No. 55-2.
4. The K.A. Case
The final investigation relevant to the plaintiffs’ claims was of a house fire that occurred
on June 18, 2008 at 317 L Street N.E. in Washington D.C. See D.C. Facts ¶¶ 40, 41. The fire
was at the house of a juvenile, K.A. Id. ¶ 41. The plaintiffs allege that “DCFEMS had initially
5
This complaint was later dismissed by the D.C. Office of Bar Counsel due to insufficient evidence. See Pls.’ Ex.
59, at 9, ECF No. 55-2.
12
assigned an inexperienced investigator to head up the fire investigation,” but “[a]fter the fire
attracted public attention, Defendant Palmer assigned Mr. Bowyer as the lead follow-up
investigator in order to close the case quickly.” Compl. ¶ 33. Plaintiff Bowyer testified in his
deposition that the investigator who had done the origin-and-cause investigation, Taunja Kittrell,
“botched” the investigation because she “hadn’t had the basic fire investigation [training].” 6
Pls.’ Ex. 3, at 188–89. As a result of Kittrell’s alleged lack of training, according to plaintiff
Bowyer, “[s]he wasn’t aware of the area of origin,” she “wasn’t aware of the standard
methodology for investigating fires,” and she “didn’t understand basic fire dynamics.” Id. at
190. Plaintiff Bowyer further testified that, while at the scene of the fire, he observed that
citizens were being allowed to walk in and out of the scene, items and debris were improperly
removed from the scene while the investigation was taking place, evidence was contaminated
after it was removed from the house, and the scene was not photographed properly. See id. at
192–95. Plaintiff Bowyer says that he notified defendant Palmer, after the completion of the
origin-and-cause investigation by Firefighter Kittrell, that “we may have problems with the arson
case based on the botched investigation.” Id. at 188.
After the initial origin-and-cause investigation by Kittrell, the plaintiffs were assigned to
conduct the follow-up investigation. See Compl. ¶ 33. According to AAG Mary O’Connor, who
prosecuted the K.A. case, K.A. confessed twice to setting the fire: once when the plaintiffs
interviewed K.A. at K.A.’s home and once when K.A. was being questioned at the Youth
Division. See Decl. of Mary O’Connor (“O’Connor Decl.”) ¶ 5, ECF No. 49-2. The plaintiffs,
however, maintain that “[t]he Plaintiffs only obtained one confession at the Youth Division” and
6
Taunja Kittrell is an African American female. See Pls.’ Ex. 3, at 189.
13
“[a]ny statements made at K.A.’s home were admissions.” 7 Pls.’ D.C. Facts ¶ 45. 8 In any event,
K.A. moved to suppress the confession, and both of the plaintiffs testified at the suppression
hearing: plaintiff Pennington for the government, and plaintiff Bowyer for the defense. See
O’Connor Decl. ¶¶ 9–10. The defendants and AAG O’Connor maintain that the testimony at the
suppression hearing established that K.A. asked for an attorney while being questioned by the
plaintiffs and that the plaintiffs continued to question K.A. despite his requests for an attorney.
See D.C. Facts ¶¶ 52–53; O’Connor Decl. ¶¶ 12–13. The plaintiffs concede that “[d]uring K.A.’s
responses to questions he would refer to his lawyer,” but contend that K.A. “never invoked his
right to counsel.” Pls.’ D.C. Facts ¶ 52. Regardless, the parties agree that the presiding judge
suppressed K.A.’s confession. See id. ¶ 55; D.C. Facts ¶ 55. The plaintiffs deny, however, the
defendants’ and AAG O’Connor’s statements that the basis for the suppression was that the
presiding judge determined that the plaintiffs had violated K.A.’s Miranda rights. See Pls.’ D.C.
Facts ¶ 55; see also D.C. Facts ¶ 55; O’Connor Decl. ¶ 14. Rather, the plaintiffs maintain that
“[i]t was not the statements made by the Plaintiffs that caused the evidence to be suppressed but
rather the lack of evidence presented by AAG O’Connor at trial.” Pls.’ D.C. Facts ¶ 55.
7
It is not clear what difference the plaintiffs seek to draw between “admissions” and a confession. As plaintiff
Bowyer states in his sworn declaration, “K.A. made the admission that he had set the fire we were investigating.”
Bowyer Decl. ¶ 83. Such an admission is a confession, although the plaintiffs indicate that K.A. spontaneously
made the admission “in an outburst that seemed to be triggered when he was asked why his aunt called MPD about
the BB gun she found in his pants,” id., suggesting that it was not in response to interrogation. See, e.g., Rhode
Island v. Innis, 446 U.S. 291, 300–01 (1980) (Miranda rights only apply “where a suspect in custody is subjected to
interrogation,” and “interrogation” refers “not only to express questioning, but also to any words or actions on the
part of the police (other than those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect”).
8
The plaintiffs and AAG O’Connor also take diametric positions regarding if and when the plaintiffs informed
O’Connor about the statements made by K.A. at K.A.’s home. According to the plaintiffs, Pennington “advised
[O’Connor] of both the admissions made at the house and the confession at the Youth division,” and although he
“tried to tell O’Connor about the admissions that had been made by K.A. at the house,” his “concerns were ignored.”
Pls.’ D.C. Facts ¶ 46. AAG O’Connor, however, avers that neither of the plaintiffs told her about the confession
made at K.A.’s home, and she maintains that she did not discover the existence of the first confession until she
spoke with her colleague at the OAG. See O’Connor Decl. ¶¶ 6–7. AAG O’Connor also avers that she “attempted
to inquire about the confessions from Investigator Bowyer, but he told me that he could not talk to me.” Id. ¶ 8.
14
On June 21, 2008, after the plaintiffs had interviewed K.A., AAG Chesser informed the
plaintiffs that they were no longer assigned to the K.A. case because they had been put on the
Lewis List by the OAG, as discussed above. See Pls.’ Ex. 4, at 180; Pls.’ Ex. 52, ECF No. 55-2;
Pls.’ D.C. Opp’n at 11. At trial in August 2008, plaintiff Bowyer was subpoenaed to testify on
behalf of the defense as “an expert with regards to general fire origin and cause.” Pls.’ D.C.
Facts ¶ 56; O’Connor Decl. ¶ 15. According to the defendants and AAG O’Connor, plaintiff
Bowyer “testified that he could not determine how the fire was started,” a conclusion that was
inconsistent with a standard form (PD 379) signed by plaintiffs Bowyer and Pennington, which
stated that “‘scene investigations revealed that fire was intentionally set.’” D.C. Facts ¶¶ 57–59;
O’Connor Decl. ¶¶ 16–18. The plaintiffs contend, however, that plaintiff Bowyer did not testify
as the defendants describe because Bowyer “did not do the origin and cause investigation” and
thus “he did not change his determination because he did not make a determination in the first
place and was not asked to do so.” Pls.’ D.C. Facts ¶¶ 57, 60. Further, although the plaintiffs do
not appear to contest the contents of the PD 379 form or that they signed that form, they contend
instead that “Bowyer signed the PD-379 because he was ordered to do so by Defendant Palmer.”
Id. ¶ 58. 9 In the end, the District’s arson prosecution of K.A. was unsuccessful, O’Connor Decl.
¶ 20, and formal disciplinary charges were subsequently filed against plaintiff Bowyer for his
testimony. The charges stated, inter alia, that the “statements you made at trial directly
contradict the PD 379 that you completed and signed on June 20, 2008, and therefore, constitutes
perjury.” Pls.’ Ex. 43, at 5, ECF No. 55-2. 10
9
The plaintiffs also aver that Sgt. Proctor “ordered Investigator Kitrell [sic] to change the fire report to fit the
confession given by K.A. at the Youth Division.” Bowyer Decl. ¶ 94.
10
The record is unclear regarding the present status of these disciplinary charges.
15
C. Alleged Retaliation by DCFEMS
The plaintiffs assert that the defendants retaliated against them after they spoke out about
the instances of alleged misconduct and incompetence discussed above, and it is this alleged
retaliation that is the nub of the plaintiffs’ case. First and most generally, the plaintiffs contend
that, as they began to speak out in 2007 about issues of racial discrimination, “botched”
investigations, and other perceived misconduct within the DCFEMS, they were subjected to a
“hostile work environment.” See Compl. ¶¶ 20, 22, 28, 31, 42; Pls.’ D.C. Opp’n at 4, 12;
Bowyer Decl. ¶ 17; Pennington Decl. ¶ 21. According to the plaintiffs, this hostile work
environment consisted of a racially divided FIU and the isolation of the plaintiffs from the rest of
the Unit based on perceived disloyalty. See Compl. ¶¶ 20, 31.
According to the Complaint, “[t]he retaliation against Plaintiffs began in the early spring
of 2007 when Defendant Rubin promoted Defendant Palmer to the position of Fire Marshal.”
Compl. ¶ 18. At that time, the plaintiffs say that they informed defendant Palmer about Sgt.
Proctor helping white firefighters cheat on the fire investigator exam “in furtherance of the
Department’s racially discriminatory policy to increase the numbers of white fire investigators
regardless of their qualifications.” Id.; see also Pls.’ Ex. 6, at 312, ECF No. 55-2. On March 26,
2007, after the plaintiffs say they had notified defendant Palmer about Sgt. Proctor’s alleged
cheating, the plaintiffs claim that Lt. Duck removed them from the Burned Vehicle Initiative
(“BVI”), a program established by the plaintiffs in January 2007 after they had noticed a rise in
vehicle fires. Pls.’ D.C. Opp’n at 5, 28; see also Pls.’ Ex. 2 ¶ 6, ECF No. 55-2. Lt. Duck took
over the BVI, and according to the plaintiffs he “reassigned these investigations to the white
firefighters who were joining FIU.” Compl. ¶ 19.
16
Next, the plaintiffs contend that, after they “raised concerns” about the origin-and-cause
investigation for the Eastern Market fire on April 30, 2007 and the alleged manipulation of
records by Lt. Duck for the purpose of obtaining new equipment for the FIU in June 2007, the
defendants changed the plaintiffs’ shift structure in retaliation. Pls.’ D.C. Opp’n at 4, 28; Pls.’
Ex. 1 ¶ 18, ECF No. 55-2. In particular, on June 16, 2007, the plaintiffs allege that the
defendants changed their work schedule “from a Monday–Friday day shift to a 24 hours on, 72
hours off schedule.” Compl. ¶ 29; see also Pls.’ D.C. Opp’n at 28. Although defendant Palmer
maintains that this shift change applied to the entire FIU “[t]o bring it in line with the rest of the
department” because of payroll and overtime issues, Defs.’ Ex. O at 293, ECF No. 49-2, the
plaintiffs contend that this shift change was retaliatory and that it “made it virtually impossible to
conduct any investigations,” Compl. ¶ 29.
The plaintiffs also say that in September 2007 they complained to their superiors in the
FIU about Lt. Duck’s alleged preferential treatment toward white firefighters and his alleged
practice of fomenting a racial divide in the FIU by encouraging white firefighters to become
loyal to his “team” rather than that of the African American firefighters. See id.¶ 21; Pls.’ D.C.
Opp’n at 4; Pls.’ Ex. 6, at 173–75. In addition to alleging that Lt. Duck ignored their complaints,
Compl. ¶ 21, the plaintiffs also contend that, after they made these complaints, (1) “the FIU
began to deny Plaintiffs the opportunity to attend training courses that other white FIU members
received;” (2) “[Lt.] Duck assigned fire investigations to inexperienced white investigators
instead of the Plaintiffs;” and (3) “[Lt.] Duck continued to pressure white investigators to stop
associating with ‘Pennington’s team’ and instead stay loyal to his ‘team,’” Pls.’ D.C. Opp’n at 4–
5. For his part, defendant Palmer explained in his deposition that a member of the department
other than the plaintiffs complained to him about Lt. Duck’s “team” mentality, and as a result
17
Palmer instructed Lt. Duck to refrain from speaking in those terms because firefighters may take
it the wrong way. See Pls.’ Ex. 6, at 173–75. According to Palmer, after he addressed the matter
with Lt. Duck, the issue never came to his attention again. See id. at 175.
In the first week of November 2007, as discussed above, the plaintiffs allege that they
both complained about what they perceived to be numerous problems with the Bridgewater
fireworks case. See Compl. ¶ 30; Pls.’ D.C. Opp’n at 29; Pennington Decl. ¶¶ 54, 56–57; Pls.’
Ex. 3, at 184. Less than a week later, on November 5, 2007, plaintiff Pennington says that
defendant Palmer warned him not to recuse himself from the case or else he would face
disciplinary action. See Pls.’ Ex. 4, at 140. A short time after the plaintiffs say they complained
about the Bridgewater case, they also claim that (1) they were both removed from all follow-up
investigations; (2) defendant Palmer revoked their take-home car privileges, call-back
privileges, 11 and computers with law enforcement capabilities; and (3) they were moved to an
office space where the K-9 unit dogs were housed. See Compl. ¶ 30; Pls.’ D.C. Opp’n at 9, 29;
Pls.’ Ex. 3, at 272; Pls.’ Ex. 4, at 266–67. The plaintiffs assert that the defendants took these
actions in retaliation for the plaintiffs raising concerns about the Bridgewater case. See Pls.’
D.C. Opp’n at 29.
Related to the Bridgewater fireworks case as well as the K.A. arson case, the plaintiffs
claim that AAG Collins “falsely reported” that the plaintiffs had perjured themselves in February
2008, which led to the plaintiffs being place on the Lewis List. See Compl. ¶¶ 31, 35; see also
Pls.’ Exs. 34–35. The plaintiffs contend that AAG Collins’s report against the plaintiffs was in
retaliation for the unsuccessful prosecution in the Bridgewater case, caused in part by what the
plaintiffs say was their truthful testimony. See Compl. ¶ 31. Additionally, the plaintiffs allege
11
The plaintiffs explain that call-back privileges “refers to the practice of calling an off-duty officer for criminal-
related matters,” and in particular “it refers to the policy of calling Plaintiffs during their days off regarding leads or
urgent pursuit of a potential piece of evidence.” Pls.’ D.C. Opp’n at 49 n.13.
18
that “the false accusation and ensuing investigation caused their working environment in the
Department to grow even more hostile” and “DCFEMS management encouraged these false
rumors and unfounded criticisms in an effort to isolate Plaintiffs and to damage their
reputations.” Id. As discussed above, the plaintiffs also had disciplinary charges brought against
them in October 2008 after their participation in the K.A. case, which they say focused “on the
disingenuous assertions that [the plaintiffs] had somehow violated K.A.’s rights,” Pennington
Decl. ¶ 93, and the plaintiffs claim that these charges were also retaliatory, see Compl. ¶ 41.
The plaintiffs further claim that they were retaliated against for their actions in the K.A.
and Bridgewater cases when they were reassigned to the Community Service Unit (“CSU”) on
August 21, 2008. See Compl. ¶ 39. In the CSU, the plaintiffs’ “duties consist of such menial
tasks . . . as checking fire hydrants, installing batteries in smoke detectors, and passing out
snacks to firefighters at fire scenes.” Id. The plaintiffs allege that their transfer to the CSU was
in retaliation for either testifying in the K.A. arson case or for filing complaints with the Equal
Employment Opportunity Commission (“EEOC”), or both, see Pls.’ D.C. Opp’n at 29–30, but
the defendants maintain that the plaintiffs were transferred because the OAG had refused to rely
upon or call the plaintiffs as witnesses and therefore they were unable to perform an “essential
part of [their] job duties” as fire investigators, see Rubin Decl. ¶¶ 8–15.
After the plaintiffs were transferred to the CSU, they began speaking about their
frustrations to people outside of the DCFEMs. In the days after they were transferred to the
CSU, the plaintiffs allege that plaintiff Bowyer e-mailed then Mayor Adrian Fenty, City
Administrator Dan Tangherlini, and City Council Chairman Vincent Gray, complaining about
race discrimination within the FIU and specifically complaining that the plaintiffs had been
retaliated against for filing EEOC complaints. See Compl. ¶ 40. The plaintiffs also gave
19
interviews to WJLA-TV, the local ABC News affiliate in the District, in which they accused the
DCFEMS of “demot[ing] them for exposing the Department’s botched fire investigations.” See
id. ¶ 42. WJLA originally aired the story on November 11, 2008 and aired a follow-up story on
November 26, 2008 that reported specifically on the plaintiffs’ allegations that the DCFEMS was
assigning unqualified investigators to investigate fires in the District. Id. In addition to these
public communications, the plaintiffs also participated in investigatory interviews with the D.C.
Office of the Inspector General (“OIG”) in January 2009, wherein they “set forth in detail their
allegations of botched fire investigations, racial discrimination, retaliation against
whistleblowers, and additional unlawful or improper conduct on the part of DCFEMS officials.”
Pls.’ D.C. Opp’n at 13; see also Pls.’ Ex. 55, ECF No. 55-2 (memoranda of plaintiffs’ interviews
with OIG). After these communications were made, a new set of disciplinary charges was
brought against plaintiff Pennington on February 5, 2009, for allegedly misrepresenting himself
as a Certified Fire Investigator on a fire investigation record, see Pls.’ Ex. 47, ECF No. 55-2, and
the plaintiffs also allege that a fellow firefighter was “assigned to CSU to monitor [the plaintiffs]
and report on their activities with the goal of developing negative information that can be used to
discipline . . . them or terminate their employment,” Compl. ¶ 45; Bowyer Decl. ¶ 77;
Pennington Decl. ¶ 73.
Following all of these events, the plaintiffs filed their three-count complaint in the instant
action on February 19, 2009. First, the plaintiffs claim that, during the course of the events
described above, they made “protected disclosures” to their superiors within the DCFEMS,
prosecutors in the OAG and AUSA offices, the D.C. Council, and the media “concerning gross
mismanagement, gross misuse or waste of public resources or funds, abuse of authority in
connection with the administration of a public program, and violations of federal and local laws
20
and DCFEMS rules.” Compl. ¶ 53. The plaintiffs allege that they were retaliated against by the
District for making these “protected disclosures” in violation of the DCWPA. Id. ¶ 54. 12 The
plaintiffs also allege two causes of action under 42 U.S.C. § 1983 for violations of their free
speech rights under the First Amendment and their contractual rights under 42 U.S.C. § 1981. In
their First Amendment claim, the plaintiffs contend that they spoke as citizens on matters of
public concern (e.g., mismanagement of fire investigations), and that “Defendants took
retaliatory actions against Plaintiffs for their exercise of their First Amendment rights.” Id.¶¶ 68–71. In their § 1981 claim, the plaintiffs allege that the defendants “intentionally took
adverse employment actions against Plaintiffs because of Plaintiffs’ race and because of their
opposition to racial discrimination . . ., which deprived Plaintiffs of their rights to contract on the
same basis as white persons.” Id. ¶ 59. After almost two years of discovery, including seven
extensions of the discovery period, pending before the Court are motions for summary judgment
by each of the defendants. For the reasons discussed below, the Court grants those motions.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “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). Summary judgment is properly
granted against a party who, “after adequate time for discovery and upon motion, . . . fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The burden is on the moving party to demonstrate that there is an “absence of a
genuine issue of material fact” in dispute. Id. at 323.
12
The DCWPA claim was dismissed against the individual defendants. See Order dated Oct. 14, 2009 (Collyer, J.),
ECF No. 10. This case was reassigned on January 19, 2011 to the current presiding Judge.
21
In ruling on a motion for summary judgment, the Court must draw all justifiable
inferences in favor of the nonmoving party and shall accept the nonmoving party’s evidence as
true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court is only required to
consider the materials explicitly cited by the parties, but may on its own accord consider “other
materials in the record.” FED. R. CIV. P. 56(c)(3). For a factual dispute to be “genuine,” the
nonmoving party must establish more than “[t]he mere existence of a scintilla of evidence” in
support of its position, Liberty Lobby, 477 U.S. at 252, and cannot rely on “mere allegations” or
conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006); Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993);
accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must present specific facts that would
enable a reasonable jury to find in its favor. See, e.g., FED. R. CIV. P. 56(c)(1). If the evidence
“is merely colorable, or is not significantly probative, summary judgment may be granted.”
Liberty Lobby, 477 U.S. at 249–50 (citations omitted).
“[A] complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. In that situation,
“[t]he moving party is ‘entitled to judgment as a matter of law’ because the nonmoving party has
failed to make a sufficient showing on an essential element of her case with respect to which she
has the burden of proof.” Id. Notably, “[s]elf-serving testimony does not create genuine issues
of material fact, especially where that very testimony suggests that corroborating evidence
should be readily available.” Fields v. Office of Johnson, 520 F. Supp. 2d 101, 105 (D.D.C.
2007). Additionally, “on summary judgment, statements that are impermissible hearsay or that
are not based on personal knowledge are precluded from consideration by the Court.” Riggsbee
v. Diversity Servs., Inc., 637 F. Supp. 2d 39, 46 (D.D.C. 2009); accord FED. R. CIV. P. 56(c)(4)
22
(“An affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”); Gleklen v. Democratic Cong. Campaign
Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000) (holding that “[v]erdicts cannot rest on
inadmissible evidence” and “sheer hearsay . . . therefore counts for nothing” at summary
judgment).
“Evaluating whether evidence offered at summary judgment is sufficient to send a case to
the jury,” however, “is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d
118, 123 (D.C. Cir. 2011). Particularly in a case such as this where non-moving parties rely
almost entirely upon their own uncorroborated statements in depositions, declarations, and
interrogatory responses to create a genuine issue of material fact, the Court must carefully assess
whether the plaintiffs’ evidence is “merely colorable,” Liberty Lobby, 477 U.S. at 249, or
whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party,” id. at 248. On the one hand, the Court must accept all of the non-movants’ evidence as
true and give them the benefit of all reasonable inferences. See id. at 255. On the other hand, a
non-movant’s allegations that are “generalized, conclusory and uncorroborated by any evidence
other than the [non-movant’s] own deposition testimony” are “insufficient to establish a triable
issue of fact”—at least where the nature of the purported factual dispute reasonably suggests that
corroborating evidence should be available. See Akridge v. Gallaudet Univ., 729 F. Supp. 2d
172, 183 (D.D.C. 2010); see also Gen. Elec. Co. v. Jackson, 595 F. Supp. 2d 8, 36 (D.D.C. 2009)
(observing that when a “declaration is self-serving and uncorroborated” it is “of little value at the
summary judgment stage”).
23
III. DISCUSSION
As the discussion of the factual background above indicates, it is clear that the plaintiffs
had during the time period in question, and perhaps continue to have, a tumultuous relationship
with their colleagues and superiors. The plaintiffs’ frustration with the way the DCFEMS was
managed and the way their superiors handled the plaintiffs’ professional concerns is manifest in
their myriad allegations. Indeed, workplaces can be breeding grounds for hurt feelings,
disagreements, and tension, and it is all the more unfortunate that a municipal fire department
would fall prey to such dysfunction because its mission should remain focused on public safety,
rather than being side-tracked with intra-workplace squabbles. Nevertheless, there is a distinct
separation—sometimes a sliver and sometimes a gulf—between workplace problems that present
colorable legal claims and those that reflect the friction of strong disagreements. As the
discussion below makes plain, the factual record in this case is replete with significant gaps and
omissions, which makes it difficult to discern on which side of that separation the plaintiffs’
claims lay. In the final calculus, however, the gaps and omissions in the summary judgment
record are simply too pervasive to allow the plaintiffs’ claims to move forward.
The plaintiffs make three claims for relief, each of which is predicated upon a theory of
protected speech by the plaintiffs that was met with retaliatory conduct by the defendants. The
Court will first discuss the plaintiffs’ claim under the D.C. Whistleblower Protection Act, which
is brought only against the District, before assessing the plaintiff’s two causes of action under 42
U.S.C. § 1983, which are brought against all three defendants.
A. Whistleblower Claim
The D.C. Whistleblower Protection Act (“DCWPA”) is intended to ensure that
“employees of the District government are free to report waste, fraud, abuse of authority,
24
violations of law, or threats to public health or safety without fear of retaliation or reprisal.”
D.C. Code § 1-616.11 (1998). Hence, at the time the plaintiffs’ claims arose, 13 the DCWPA
provided that “[a] supervisor shall not threaten to take or take a prohibited personnel action or
otherwise retaliate against an employee because of the employee’s protected disclosure.” Id. § 1-
616.13. The Act defined (and continues to define) “prohibited personnel action” broadly as,
inter alia, “recommended, threatened, or actual termination, demotion, suspension, or reprimand;
involuntary transfer, reassignment, or detail; . . . or retaliating in any other manner against an
employee because that employee makes a protected disclosure.” Id. § 1-616.12(a)(5). The Act
further defined a “protected disclosure” 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
(E) A substantial and specific danger to the public health and safety.
Id. § 1-616.12(a)(6). Finally, the Act provided that:
In a civil action . . . once it has been demonstrated by a preponderance of the
evidence that an activity proscribed by [§ 1-616.13] was a contributing factor in
the alleged prohibited personnel action against an employee, the burden of proof
shall be on the employing District agency to prove by clear and convincing
13
The DCWPA was amended in January 2010—several months after the plaintiffs filed their Complaint. See
Whistleblower Protection Amendment Act of 2009, 57 D.C. Reg. 896 (Jan. 22, 2010). None of the substantive
changes made in the 2009 amendments apply retroactively to the plaintiffs’ claims because the amendments
“attach[] new legal consequences to events completed before [their] enactment.” Landgraf v. USI Film Prods., 511
U.S. 244, 270 (1994); see also Bowyer v. District of Columbia, 779 F. Supp. 2d 159, 163–64 (D.D.C. 2011)
(applying elimination of pre-suit notice in DCWPA retroactively because it was procedural change). It is for this
reason that the Court will only refer to the 1998 version of the DCWPA that was in place until the 2010 amendments
were enacted.
25
evidence that the alleged action would have occurred for legitimate, independent
reasons even if the employee had not engaged in activities protected by this
section.
Id. § 1-616.14(b). A “contributing factor” means “any factor which, alone or in connection with
other factors, tends to affect in any way the outcome of the decision.” Id. § 1-616.12(a)(2).
Hence, to make out a prima facie case under the DCWPA, a plaintiff must prove, by a
preponderance of the evidence, (1) a “protected disclosure”; (2) a “prohibited personnel action”;
and (3) a causal connection between the protected disclosure and the prohibited personnel action,
such that the protected disclosure was at least a “contributing factor” in the personnel action.
See, e.g., Hawkins v. Boone, 786 F. Supp. 2d 328, 333 (D.D.C. 2011); D.C. Code § 1-616.14(b)
(1998).
As the foregoing recitation of the factual background attests, the plaintiffs aver a laundry
list of various disclosures and complaints that they made within and outside the DCFEMS, and
they likewise cite a laundry list of actions by the District that they claim were retaliatory. The
critical task for the plaintiffs’ DCWPA claim, however, is to locate disclosures that are protected
by the DCWPA and which also have a causal connection to a prohibited personal action taken by
the District. The plaintiffs simplify this exercise by focusing their arguments on four sets of
disclosures and personnel actions that they argue establish a prima facie case under the DCWPA.
See Pls.’ D.C. Opp’n at 27–30.
1. Prohibited Personnel Actions
The plaintiffs organize their DCWPA argument around four separate personnel actions
by the District: (1) removing the plaintiffs from the Burned Vehicle Unit (“BVI”); (2) changing
the plaintiffs’ schedule from a Monday–Friday daytime schedule to a 24-hour on-duty/72-hour
off-duty schedule; (3) taking away the plaintiffs’ take-home car privileges and call-back
26
privileges and moving them to an office space that housed the K-9 unit; and (4) reassigning the
plaintiffs to the Community Service Unit (“CSU”). See id. 14
Although the parties have elected not to brief this issue, the second personnel action
listed above (changing the plaintiffs’ schedule) does not qualify as a “prohibited personnel
action” under the DCWPA, and therefore it cannot serve as the basis for a prima facie case. The
DCWPA’s definition of “prohibited personnel action,” though broadly drawn, does not
encompass a mere change in an employee’s schedule that does not result in a material or tangible
change in the employee’s privileges, benefits, pay, or work assignments. See D.C. Code § 1-
616.12(a)(5) (1998). The statute does not expressly contemplate schedule changes as “prohibited
personnel actions,” and thus a schedule change cannot be considered a prohibited personnel
action unless it could be reasonably construed as a “demotion,” “reprimand,” “reassignment,” or
“transfer,” i.e., a materially adverse change in employment. Id.; see, e.g., Williams v. District of
Columbia, 825 F. Supp. 2d 88, 98 (D.D.C. 2011) (“[A]n employee may recover under the DC-
WPA only for those personnel actions that might well have dissuaded a reasonable employee in
the plaintiff’s position from making a protected disclosure.”).
Courts have recognized that schedule changes can qualify as materially adverse personnel
actions when the context of the schedule change exacts an identifiable cost on the employee, see,
e.g., Caudle v. District of Columbia, 804 F. Supp. 2d 32, 44 (D.D.C. 2011) (holding that “the
14
The Complaint does not make an express claim of a hostile work environment, but the record does contain several
oblique references to a “hostile work environment” within the FIU that was retaliatory. See, e.g., Compl. ¶¶ 22, 31,
42; see also Pls.’ D.C. Opp’n at 4, 23, 47 n.12; Bowyer Decl. ¶ 17; Pennington Decl. ¶ 21; Pls.’ Ex. 20, at 4, ECF
No. 55-2; Pls.’ Ex. 23, at 6, ECF No. 55-2. To the extent the plaintiffs contend that they experienced a hostile work
environment, that claim fails because the plaintiffs have not presented any evidence from which a reasonable jury
could conclude that the plaintiffs were subjected to “‘discriminatory intimidation, ridicule, and insult’ that [was]
‘sufficiently severe or pervasive to alter the conditions of the [plaintiffs’] employment and create an abusive
working environment.’” Baird v. Gotbaum, 662 F.3d 1246, 1250 (D.C. Cir. 2011) (quoting Baloch v. Kempthorne,
550 F.3d 1191, 1201 (D.C. Cir. 2008)). Although the record indicates that the plaintiffs’ work environment was not
ideal, and was at times unpleasant, the evidence they have presented does not meet “the demanding standards for a
hostile work environment claim.” Id. (internal quotation marks omitted).
27
denial of a requested schedule change” was materially adverse because it “prevented [the
plaintiff] from being at home with her school-age daughter”), or where the schedule change
results in fewer hours, lower pay, or different job responsibilities, see Than v. Radio Free Asia,
496 F. Supp. 2d 38, 49 (D.D.C. 2007) (“[A] reasonable employee would consider that a
reduction in work hours (and the resulting reduction in pay) . . . to be material adverse actions.”);
Stone-Clark v. Blackhawk, Inc., 460 F. Supp. 2d 91, 97 (D.D.C. 2006) (schedule change was
adverse where the change “dramatically reduced [plaintiff’s] work hours and job responsibilities
by removing her from the schedule completely”). The plaintiffs, however, have not
demonstrated that the change from a Monday–Friday daytime schedule to a 24-hour on-duty/72-
hour off-duty schedule, which they concede was applied across the DCFEMS, see Def. D.C.’s
Reply in Supp. Mot. for Summ. J. (“D.C. Reply”) at 13, ECF No. 59, would dissuade a
reasonable employee from making a protected disclosure. The plaintiffs argue that the
scheduling change “made it significantly more difficult to conduct the investigations to which
they were assigned,” Pls.’ D.C. Opp’n at 49, but they do not specify how their work was
adversely impacted, much less present evidence to support such an adverse impact. Although a
24 hours on-duty, 72 hours off-duty schedule might in some circumstances make investigating
fires more difficult, the plaintiffs have failed to offer any evidence of whether that difficulty was
merely minimal or whether, as they claim, it rose to the level of being materially adverse. Since
the plaintiffs have presented no evidence that their schedule change “might well have dissuaded
a reasonable employee in the plaintiff’s position from making a protected disclosure,” Williams,
825 F. Supp. 2d at 98, the schedule change does not qualify as a “prohibited personnel action”
under the DCWPA.
28
The other three personnel actions put forth by the plaintiffs, however, qualify as
“prohibited personnel actions” under the DCWPA because they involve either “involuntary
transfer[s]” or the removal of material employment privileges. See D.C. Code. § 1-616.12(a)(5)
(1998). Therefore, the Court must next assess whether the plaintiffs have established any
“protected disclosures” that could have been “contributing factors” to these prohibited personnel
actions.
2. Protected Disclosures and Causal Connection
The D.C. Court of Appeals has held that, in order for an employee’s disclosure to be
protected under the DCWPA, “‘an employee must disclose such serious errors by the agency that
a conclusion the agency erred is not debatable among reasonable people.’” Wilburn v. District of
Columbia, 957 A.2d 921, 925 (D.C. 2008) (quoting White v. Dep’t of the Air Force, 391 F.3d
1377, 1382 (Fed. Cir. 2004)). 15 Notably, the DCWPA does not require that an employee
disclose actual gross mismanagement or misconduct. Rather, a protected disclosure “is one that
the employee ‘reasonably believes’ evidences one or more of the circumstances delineated in
D.C. Code [§ 1-616.12(a)(6)(A)–(E) (1998)].” Id. The “proper test” for determining whether a
belief is reasonable is to ask whether “a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee [could] reasonably conclude that the
actions of the government evidence [illegality, gross mismanagement, etc.].” Zirkle v. District of
Columbia, 830 A.2d 1250, 1259–60 (D.C. 2003) (quoting Lachance v. White, 174 F.3d 1378,
1381 (Fed. Cir. 1999)). In other words, “[a] purely subjective perspective of an employee is not
sufficient even if shared by other employees” because the DCWPA “is not a weapon in
15
The D.C. Court of Appeals “has recognized that the federal whistleblower statute, and its accompanying federal
case law, are instructive in interpreting the DC-WPA.” Williams v. District of Columbia, 9 A.3d 484, 489 n.1 (D.C.
2010).
29
arguments over policy or a shield for insubordinate conduct.” Id. (quoting Lachance, 174 F.3d at
1381).
a) Disclosure of Cheating Allegations
The plaintiffs first argue that their alleged disclosure “that [Sgt.] Proctor had abused his
authority to help white firefighters cheat on the investigator’s examination in early spring 2007”
was a contributing factor in the decision to remove the plaintiffs from the BVI on March 26,
2007. See Pls.’ D.C. Opp’n at 28. The plaintiffs correctly contend that “actively assisting white
firefighters to help them pass the required exam,” to the exclusion and detriment of African
American firefighters, could reasonably be perceived as illegal behavior under Title VII and the
D.C. Human Rights Act. See id. at 19. Even assuming that the plaintiffs are correct, however,
the disclosure of these allegations by the plaintiff does not protect them because the record
demonstrates that, if indeed the plaintiffs ever raised these allegations, the plaintiffs were not the
ones who raised the allegations in the first instance. The defendants have presented an
undisputed, sworn declaration by Sgt. Proctor, which states that cheating allegations were first
raised by a different firefighter in an EEO complaint, not by the plaintiffs. See Decl. of Phillip
Proctor (“Proctor Decl.”) ¶¶ 10–11, ECF No. 59-3. It was this other firefighter’s allegations that
led to an investigation of Sgt. Proctor, see id. ¶ 16, and the plaintiffs only learned of these
allegations after Sgt. Proctor told them, id. ¶¶ 14–15. Although the plaintiffs allege that they
were the ones who raised the cheating allegations, they have presented no evidence to
demonstrate that crucial fact, nor have they contested the substance of the Proctor Declaration,
which contradicts the plaintiffs’ unsupported assertions. Therefore, the cheating allegations
against Sgt. Proctor do not qualify as a protected disclosure in the instant action because the
plaintiffs were not the ones to raise those allegations in the first instance, and thus the proverbial
whistle had already been blown before the plaintiffs ever learned of the cheating allegations. See
30
Wilburn, 957 A.2d at 925–26 (Pre-2010 version of DCWPA only protects disclosures of
information “that was not already known” (citing Meuwissen v. Dep’t of the Interior, 234 F.3d 9,
13 (Fed. Cir. 2000))). 16
b) Disclosure of Problems with the Bridgewater Case
Next, the plaintiffs argue that their alleged disclosure to AUSA Matt Graves of purported
problems with the Bridgewater fireworks investigation was a contributing factor in the decision
to take away the plaintiffs’ take-home car privileges and call-back privileges and to reassign
them to an office space that housed the K-9 unit. See Pls.’ D.C. Opp’n at 29. The plaintiffs say
that they informed AUSA Graves that the “FIU had lost the seized fireworks and money, and
that the photographs Graves had did not depict the scene properly,” and they argue that a
reasonable person would view this alleged loss of evidence in a criminal case as “blatant gross
mismanagement.” Id. at 24. The plaintiffs are correct that the apparent mishandling and loss of
material evidence in a criminal case qualifies as “gross mismanagement” under the DCWPA.
See, e.g., Mentzer v. Lanier, 677 F. Supp. 2d 242, 250 (D.D.C. 2010) (interpreting “gross
mismanagement” in DCWPA to mean “‘a management action or inaction which creates a
substantial risk of significant adverse impact upon the agency’s ability to accomplish its
mission’” (quoting Kavanagh v. Merit Sys. Prot. Bd., 176 F. App’x 133, 135 (Fed. Cir. 2006))).
Yet, the plaintiffs offer no evidence (other than the characterizations in their self-serving
and uncorroborated deposition testimony) to establish the nature of their disclosures to AUSA
Graves. See Pls.’ D.C. Opp’n at 24–25, 29. As the D.C. Court of Appeals has cautioned:
16
The 2010 amendments to the DCWPA broadened the definition of “protected disclosure” to mean “any disclosure
of information . . . without restriction to time, place, form, motive, context, forum, or prior disclosure made to any
person by an employee or applicant.” See D.C. Code. § 1-615.52(a)(6) (2012) (emphasis added). The D.C. Court of
Appeals has observed that this new language “reflects the Council’s focus on protecting employees or applicants
who risk their job security to disclose information that might have already been disclosed by another employee or
applicant.” Williams, 9 A.3d at 490 n.5. This statutory change, however, does not apply retroactively to the
plaintiffs’ claims in the instant action, and therefore it cannot save the plaintiffs’ claim with regard to the 2007
cheating allegations. See supra note 13.
31
“‘[T]he basis for determining the nature of . . . charges’ that a putative whistleblower has made
‘are the statements . . . in [his] complaint’ to a supervisor or to a public body, ‘not [his]
subsequent characterization of those statements’ in litigation.” Wilburn, 957 A.2d at 925(quoting Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 523–28 (Fed. Cir. 1992)). AAG Collins
disputes that any evidence was lost or destroyed at all in the Bridgewater fireworks case, see
Collins Decl. ¶ 41, and the plaintiffs offer no corroborating evidence—either from AUSA Graves
or otherwise—regarding what was disclosed to him or why he chose to drop the case against
Bridgewater.
What is more, plaintiff Pennington’s sparse discussion of these disclosures in his own
deposition testimony is inconsistent. At one point, plaintiff Pennington asserted that he revealed
several problems to AUSA Graves in their November 1, 2007 meeting. See Pls.’ Ex. 4, at 147–
48 (testifying that he discussed “the chain of custody, the fact that [AAG] Collins knew that the
evidence was missing,” and other purported problems with the investigation “when [he] was in
Matt Graves’ office talking about the Bridgewater case”). This is also what the plaintiffs
contend in their briefing. See Pls.’ D.C. Opp’n at 24. At another point in his deposition,
however, plaintiff Pennington implied that he did not reveal any issues to AUSA Graves until
Pennington asked to recuse himself—the day after he met with Graves. See Pls.’ Ex. 4, at 139
(“In the attorney/witness conference, I was reviewing the documents and evidence that we
had . . . in preparation for the Bridgewater trial, and I—the next day, I requested to recuse myself
based on what I saw was missing . . . .”). Plaintiff Pennington also makes no mention in his
sworn declaration of disclosing missing evidence to AUSA Graves. Rather, plaintiff Pennington
only references telling AUSA Graves about “inconsistent representations about where the gun
32
was found” and “FIU members who were involved in the case that were under investigation.”
Pennington Decl. ¶ 57.
In sum, the plaintiffs’ evidence offered to establish the nature of the disclosures made is
murky and inconsistent at best. This problem with the plaintiffs’ evidence is exacerbated by the
fact that it is narrowly limited to the plaintiffs’ self-serving deposition testimony and
uncorroborated by either documentary evidence or the testimony of others involved in the case
who should have at least been able to confirm the substance of what the plaintiffs disclosed, e.g.,
Sgt. Proctor, AAG Collins, and AUSA Graves. In fact, these three individuals are either silent in
the record or directly contest the plaintiffs’ version of events. See Pls.’ Ex. 69 ¶¶ 41–43, ECF
No. 55-2 (Sgt. Proctor stating in sworn declaration that “no evidence in the Bridgewater case was
missing” and that AUSA Graves informed him that plaintiff Pennington’s “sole reason” cited for
recusal was “he felt that Investigator James Taylor had veracity issues”); Collins Decl. ¶¶ 21–22,
41 (testifying that “[AUSA] Graves told me that Pennington told him he was recusing himself
from the case based on his belief that Taylor should not be involved” and that “no evidence in
the Bridgewater matter was lost or destroyed”). 17 As a result of these deficiencies in the
plaintiffs’ evidence, the plaintiffs have failed to establish that the disclosures they allege were
made regarding the Bridgewater fireworks case were “protected disclosures” under the DCWPA.
17
Although the Court considers this testimony of Sgt. Proctor and AAG Collins insofar as their version of events
tends to impeach the plaintiffs’ theory, the Court is mindful that their testimony is also hearsay insofar as it offers
the out-of-court statements of AUSA Graves for the truth of the matter asserted. The Court does not consider such
hearsay evidence in deciding the defendants’ summary judgment motions. See Gleklen, 199 F.3d at 1369.
Regardless, such evidence is ultimately immaterial to the plaintiff’s failure to establish that the disclosures they
allege were made regarding the Bridgewater fireworks case were “protected disclosures” under the DCWPA. See
Celotex, 477 U.S. at 323 (“[A] complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.”). The plaintiffs request that the Court strike the declarations of
AAGs Collins, Chesser, and O’Connor because they “are riddled with hearsay and statements that either lack
foundation or are otherwise made without personal knowledge.” Pls.’ D.C. Opp’n at 14. The Court reiterates that it
does not consider any hearsay evidence in deciding the defendants’ motions, but the plaintiffs’ request to strike these
three declarations in their entirety is denied because all three declarations contain a number of facts that are not
based on hearsay and that are relevant to deciding the defendants’ motions.
33
c) Testimony in the K.A. Trial and EEOC Complaints
Finally, the plaintiffs appear to argue that their EEOC complaints regarding racial
discrimination and their testimony in the K.A. arson trial were protected disclosures and were
also contributing factors in the decision to reassign the plaintiffs from the FIU to the CSU. See
Pls.’ D.C. Opp’n at 29–30. Clearly, EEOC complaints containing reasonably colorable
allegations of racial discrimination are the quintessential example of protected activity and easily
fall within the DCWPA’s definition of “violation[s] of a federal, state, or local law.” See D.C.
Code. § 1-616.12(a)(6)(D) (1998); Smith v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir.
2005) (“Clearly, [the plaintiff] engaged in a statutorily-protected activity when she filed her first
EEOC complaint.”). The plaintiffs’ argument regarding their testimony in the K.A. arson trial,
however, is less clear. They argue that plaintiff Bowyer’s “truthful testimony” in the K.A. trial,
which apparently included testimony “regarding the problems with the investigation, evidence,
and origin and cause determination,” was a protected disclosure. See Pls.’ D.C. Opp’n at 25, 29–
30. The plaintiffs characterize the problems with the K.A. investigation as “gross
mismanagement and abuse of authority” because the issues allegedly included contaminating
pieces of evidence, failing to secure the scene of the fire, and “us[ing] a DCFEMS Accelerant
Detection K-9 dog with a known record of inaccurate alerts to determine the cause of the fire.”
See id. at 24–25.
There are three potential problems with finding that plaintiff Bowyer’s K.A. trial
testimony qualifies as a “protected disclosure” under the DCWPA. First and most importantly,
there is scant evidence regarding exactly what the plaintiffs disclosed to their superiors and what
plaintiff Bowyer testified to regarding “problems” or “holes” in the origin-and-cause
investigation. Although the parties both appear to agree that plaintiff Bowyer’s testimony was
not helpful to the prosecution—which seems fairly obvious from the fact that the defense
34
subpoenaed him to testify—testimony that is damaging to a criminal prosecution does not
necessarily reveal “gross mismanagement.” The plaintiffs elaborate in their briefing about the
alleged problems with the K.A. investigation, see id., but this is simply the plaintiffs’
characterization of the problems for purposes of litigation. As the Court has already touched
upon above, “‘[t]he basis for determining the nature of . . . charges’ that a putative whistleblower
has made ‘are the statements . . . in [his] complaint’ to a supervisor or to a public body, ‘not [his]
subsequent characterization of those statements’ in litigation.” Wilburn, 957 A.2d at 925(quoting Ward, 981 F.2d at 523–28). Thus, the fact that the plaintiffs rely solely upon plaintiff
Bowyer’s subsequent characterization of his testimony to establish its protected nature is
problematic.
Additionally, even accepting as true the plaintiffs’ post hoc characterization of plaintiff
Bowyer’s testimony, it is far from clear that the problems Bowyer identified with the K.A.
investigation rise to the level of “gross mismanagement” under the DCWPA. The plaintiffs
argue that “a reasonable person could conclude that the blatant improper handling of the scene
constituted evidence of gross mismanagement,” Pls.’ D.C. Opp’n at 25, but the alleged
procedural shortcomings of investigator Kittrell’s investigation could easily be viewed as simple
professional negligence on the part of a relatively inexperienced investigator, see Lopez v. Hous.
& Urban Dev., No. 96-3230, 1996 WL 532742, at *1 (Fed. Cir. Sept. 19, 1996) (“Gross
mismanagement must be more than mere inadvertence or negligence.” (citing Ward, 981 F.2d at
525)). Nevertheless, the Court is mindful that the “expansive protections” of the DCWPA are
“designed to encourage disclosures concerning a broad universe of government misconduct and
public safety issues.” Saunders v. District of Columbia, 789 F. Supp. 2d 48, 57 (D.D.C. 2011);
see also Mentzer, 677 F. Supp. 2d at 250 (extending protection to disclosure of, inter alia,
35
negligent care of horses within the mounted police). Therefore, the plaintiffs’ characterization of
plaintiff Bowyer’s trial testimony may be sufficiently serious for a disinterested observer
reasonably to conclude that the K.A. investigation involved gross mismanagement.
Returning to the first problem discussed above, however, the Court cannot merely rubber-
stamp the plaintiffs’ post hoc characterizations and relieve the plaintiffs of their burden to
demonstrate that plaintiff Bowyer’s trial testimony revealed gross mismanagement. See
Wilburn, 957 A.2d at 925. Since the plaintiffs attempt to rely solely upon a subsequent, self-
serving characterization of the testimony, rather than an objective account of the testimony itself,
the Court concludes that the plaintiffs have failed to establish a prima facie case regarding the
protected nature of plaintiff Bowyer’s testimony in the K.A. trial. Direct evidence of the
substance of plaintiff Bowyer’s testimony is critically important in determining whether it
qualifies as a protected disclosure under the DCWPA. See id. at 926 (observing that “[i]n none
of her communications to the Council did [the plaintiff] describe [the law firm’s] performance
using the language of ‘gross’ waste or abuse, or of ‘violation[s],’” and holding that the plaintiff’s
“choice of language belies her claim that she intended to convey . . . wrongdoing or abuse”).
What is more, such evidence would be readily available in the form of a trial transcript. 18 Yet,
the plaintiffs have not offered so much as an excerpt from the K.A. trial transcript to support
their argument at the summary judgment stage. Therefore, the plaintiffs have failed to establish
that plaintiff Bowyer’s trial testimony in the K.A. arson case qualifies as a “protected disclosure”
under the DCWPA, and thus cannot establish a prima facie case.
Third and finally, the plaintiffs claim that plaintiff Bowyer disclosed the same problems
with the K.A. case to defendant Palmer and AAG Chesser on June 25, 2008—a month and a half
18
The record indicates that a transcript of the trial was taken. See Defs.’ Ex. R, ECF No. 49-2.
36
before the trial testimony occurred. See Pls.’ D.C. Opp’n at 25. Therefore, an additional reason
for concluding that the trial testimony was not protected is that plaintiff Bowyer “had already
acted to remedy the problem” by reporting it to his DCFEMS and OAG superiors well before he
allegedly “disclosed” the problems at trial. Wilburn, 957 A.2d at 927. Thus, plaintiff Bowyer’s
statements at trial “did not constitute statements ‘to persons who may be in a position to act to
remedy’ the ‘wrongdoing’ disclosed.” Id. (quoting Huffman v. Office of Pers. Mgmt., 263 F.3d
1341, 1349 (Fed. Cir. 2001)).
Nevertheless, as discussed above, plaintiff Bowyer’s EEOC complaint, which is dated
“8/7/08,” qualifies as a protected disclosure. 19 See Pls.’ Ex. 41, ECF No. 55-2. With regard to
this complaint, the plaintiffs argue that the close temporal proximity between the filing of the
complaint and the plaintiffs’ reassignment to the CSU raise “a strong inference of
connectedness.” Pls.’ D.C. Opp’n at 30. There are, however, at least two major problems in
relying on plaintiff Bowyer’s EEOC complaint to conclude that it was a contributing factor in the
decision to reassign the plaintiffs. First, although “[t]emporal proximity between a protected
activity and an adverse action can establish a prima facie case of retaliation if the employer had
knowledge of the protected activity,” Mentzer, 677 F. Supp. 2d at 255 (citing Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001)), the plaintiffs have presented no evidence that
anyone responsible for the reassignment knew about the EEOC complaint before the
reassignment occurred.
Additionally, although plaintiff Bowyer’s signature on his EEOC complaint appears to be
dated August 7, 2008, and the plaintiffs state in their briefing that the complaint was filed on
August 13, 2008, see Pls.’ Mem. of P. & A. in Opp’n to Def. Rubin’s Mot. Summ. J. (“Pls.’
19
Plaintiff Pennington also submitted an EEOC complaint, but it is dated August 22, 2008—the day after the
plaintiffs were reassigned to the CSU—and therefore it could not have been a contributing factor in the
reassignment. See Pls.’ Ex. 42, ECF No. 55-2.
37
Rubin Opp’n”) at 20, ECF No. 57, the text of the EEOC charge clearly complains about alleged
discrimination that occurred through September 1, 2008 (including the reassignment to the
CSU). See Pls.’ Ex. 41. This is strong evidence that the complaint was not completed until at
least September 1, 2008, no matter when the date on the document suggests that it was signed.
Indeed, it appears as though the complaint was not time-stamped by the EEOC Washington Field
Office until the morning of September 8, 2008. See id. As a result, it would be impossible for
any reasonable juror to conclude that plaintiff Bowyer’s EEOC complaint contributed to the
decision to reassign the plaintiffs on August 21, 2008 because it was not completed until
September 1, 2008, at the earliest.
As a result of the foregoing analysis, the plaintiffs cannot establish a causal connection
between any protected disclosures and the decision to reassign them to the CSU. In the bigger
picture, this also means that the plaintiffs are unable to establish a prima facie case of retaliation
with respect to any combination of protected disclosures and prohibited personnel actions.
Hence, the District is entitled to summary judgment on the plaintiffs’ claim under the DCWPA.
B. Claim for Violation of First Amendment Rights
The plaintiffs’ claim under 42 U.S.C. § 1983 that the defendants retaliated against them
for exercising their First Amendment right to free speech is conceptually analogous to the
plaintiffs’ claim under the DCWPA. Both claims assert that the plaintiffs engaged in certain
protected speech and were retaliated against for doing so. Despite this high-level similarity,
however, the two claims must be analyzed under separate legal standards, even though the Court
reaches the same conclusion as to both claims.
38
1. Requisite Showing for Claim of Retaliation for Exercise of First
Amendment Rights
“The speech of public employees enjoys considerable, but not unlimited, First
Amendment protection.” Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007). Public
employees seeking to make out a claim for retaliation in violation of their First Amendment
rights must satisfy four elements: (1) the public employees must have “spoken as citizens on a
matter of public concern;” (2) the employees’ interest, as citizens, “in commenting upon matters
of public concern,” must outweigh the governmental interest in “promoting the efficiency of the
public services it performs through its employees;” (3) the employees must demonstrate that
their “speech was a substantial or motivating factor in prompting the retaliatory or punitive act;”
and (4) “the employee[s] must refute the government employer’s showing, if made, that it would
have reached the same decision in the absence of the protected speech.” Id. (internal quotation
marks omitted). “The first two factors . . . are questions of law for the court to resolve, while the
latter are questions of fact ordinarily for the jury.” Tao v. Freeh, 27 F.3d 635, 639 (D.C. Cir.
1994). The Supreme Court has provided guidance to courts in applying the first two factors.
At the outset, “a citizen who accepts public employment ‘must accept certain limitations
on his or her freedom.’” Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2494 (2011) (quoting
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). In order for a public employee’s speech to be
insulated from employer discipline, the employee must have been speaking “as a citizen upon
matters of public concern.” Connick v. Myers, 461 U.S. 138, 147 (1983). The Supreme Court
has clarified what it means for a public employee to speak as a citizen, holding that “when public
employees make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti, 547 U.S. at 421. The rule articulated in
39
Garcetti has two components: (1) whether the speech was made “pursuant to employment
responsibilities” or “as a citizen,” and (2) whether the speech was about “a matter of public
concern” or a “matter[] only of personal interest.” See id. at 423–24; Connick, 461 U.S. at 147.
“Whether an employee’s speech is one of public concern depends on its content, form, and
context, as revealed by the whole record.” Tao, 27 F.3d at 639 (citing Connick, 461 U.S. at 147–
48). “While an individual personnel dispute does not generally constitute a matter of public
concern, an employee’s speech aimed at resolving a personnel dispute may touch upon an issue
of public concern.” Id. (citations omitted).
2. Plaintiffs’ Alleged Protected Speech
The plaintiffs specifically cite four examples of speech in their briefing that they argue
were protected under the First Amendment. These four statements include: (1) “report[ing] to
Proctor, Lee, and Defendant Palmer that [Lt.] Duck was manipulating and miscalculating fire
investigation data and reports in order to get newer or fancier equipment,” (2) “report[ing] [that]
their supervisor, Defendant Palmer, abused his authority to allow white firefighter candidates to
cheat on the firefighter entrance exam,” 20 (3) speaking “with then-Mayor Adrian Fenty, then-
City Administrator Dan Tangherlini, and then-Council Chairman Vincent Gray about race
discrimination and retaliation at DCFEMS,” and (4) making “statements on television and radio
programs regarding retaliation, mishandling of evidence, and mismanagement of fire
investigations with WJLA-TV, City Paper, and the Washington Post.” D.C. Opp’n at 42–43; see
also Pls.’ Rubin Opp’n at 30–32; Pls.’ Mem. of P. & A. in Opp’n to Def. Palmer’s Mot. Summ.
J. (“Pls.’ Palmer Opp’n”) at 28–30, ECF No. 56.
20
This is the only specific example provided for the more general category of speech offered by the plaintiffs, which
allegedly consisted of “complain[ing] to supervisors, including Proctor, Lee, Defendant Palmer, and Defendant
Rubin, about the racial discrimination within the FIU.” Pls.’ D.C. Opp’n at 42. As discussed infra, the plaintiffs’
allegations that they disclosed and complained about racial discrimination in the FIU, with certain exceptions, are
without any evidentiary basis.
40
The plaintiffs, however, do not even allege that two of these four statements were the
motivation for particular personnel actions. Indeed, unlike the plaintiffs’ DCWPA claim, the
plaintiffs have not focused the analysis of their First Amendment claim around specific
statements that are tied to specific personnel actions. 21 Since the plaintiffs do not claim that two
of the four examples of allegedly protected speech have a nexus to an adverse employment
action by the defendants, the Court will not discuss whether those two examples proffered by the
plaintiff enjoy First Amendment protection. 22 The two exceptions, which the plaintiffs do
attempt to connect to adverse employment actions, are the disclosure by the plaintiffs that Lt.
Duck “was manipulating and miscalculating fire investigation data and reports” (1 above) and
the disclosure of cheating on the firefighter exam (2 above). The plaintiffs clearly argue that the
disclosure about Lt. Duck was the motivation behind the decision to change the plaintiffs’
schedule, see, e.g., Pls.’ D.C. Opp’n at 28, and the plaintiffs also argue that the disclosure about
cheating on the firefighter exam was the motivation behind the plaintiff’s removal from the
Burned Vehicle Initiative, see id.a) Disclosures About Lt. Duck and Sgt. Proctor
The Court will begin by analyzing the plaintiffs’ alleged statements to supervisors about
Lt. Duck manipulating fire data and reports (1 above). Since the plaintiffs allege that the
retaliation for those statements was a schedule change, the Court must revisit the issue of
whether the change in the plaintiffs’ schedule from a Monday–Friday daytime schedule to a 24-
21
The plaintiffs do, however, appear to anchor their First Amendment retaliation claim to the same four personnel
actions cited in their DCWPA claim: (1) removing the plaintiffs from the Burned Vehicle Unit (“BVI”);
(2) changing the plaintiffs’ schedule from a Monday–Friday daytime schedule to a 24-hour on-duty/72-hour off-duty
schedule; (3) taking away the plaintiffs’ take-home car privileges and call-back privileges and moving them to an
office space that housed the K-9 unit; and (4) reassigning the plaintiffs to the Community Service Unit (“CSU”).
See Pls.’ D.C. Opp’n at 47–50; see also Pls.’ Palmer Opp’n at 33–37; Pls.’ Rubin Opp’n at 35–38.
22
Indeed, examples (3) and (4) above of allegedly protected speech—speaking with D.C. city officials and to the
press—occurred after any of the adverse personnel actions identified by the plaintiffs, a timing conundrum that
effectively undercuts any retaliation claim based on that speech. See Pls.’ Ex. 62, ECF No. 55-2 (letters to D.C. City
Council dated December 23, 2008, February 18, 2009, March 20, 2009, and April 3, 2009).
41
hour on-duty/72-hour off-duty schedule is sufficient to support the plaintiffs’ First Amendment
claim. Though the D.C. Circuit has held that “[e]mployer action taken against an employee in
response to her exercise of free speech need not be as significant as the denial of a promotion to
raise a constitutional claim,” Tao, 27 F.3d at 639, whether an employer’s alleged retaliation is
actionable “depends on whether the harassment is ‘[]likely to deter a person of ordinary firmness
from [the] exercise [of his First Amendment rights],’” Toolasprashad v. Bureau of Prisons, 286
F.3d 576, 585 (D.C. Cir. 2002) (quoting Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir.
1996), vacated on other grounds, 523 U.S. 574 (1998)). This standard is very similar (if not
identical) to the standard articulated in Burlington Northern and discussed above. See supra Part
III.A.1 (discussing whether personnel action “might well have dissuaded a reasonable employee
in the plaintiff’s position from making a protected disclosure”). Thus, for the same reasons
discussed previously, the change to the plaintiffs’ schedule is not sufficient to support the
plaintiffs’ First Amendment claim.
Next, the Court will discuss whether the First Amendment protects any of the plaintiffs’
other statements. The Court will begin by discussing the second of the statements discussed
above that the plaintiffs specifically argue is both protected by the First Amendment and was
connected to an adverse personnel action: the plaintiffs’ complaint to their superiors that Sgt.
Proctor had helped certain white firefighters cheat on a fire instructor examination. See, e.g.,
Pls.’ D.C. Opp’n at 42. There is little doubt that a statement about helping white firefighters
cheat, to the exclusion and detriment of African American firefighters, would be one of public
concern because it would raise the prospect of racial discrimination within the FIU. As the D.C.
Circuit has held, “[a] statement concerning racial discrimination on the part of a public agency is
a matter of public concern because it involves information that enables members of society to
42
make informed decisions about the operation of their government.” Tao, 27 F.3d at 640 (internal
quotation marks omitted).
The defendants argue, however, that evaluation of whether this speech would be
protected is unnecessary because the plaintiffs have failed even to put forth minimally sufficient
evidence to demonstrate that they spoke about Sgt. Proctor’s alleged cheating at all. See Def.
Rubin’s Reply to Pls.’ Mem. of P. & A. in Opp’n to Def.’s Mot. Summ J. (“Rubin Reply”) at 15,
ECF No. 61. Indeed, the only evidence cited by the plaintiffs to support the claim that they
raised allegations of cheating by Sgt. Proctor is a short snippet of plaintiff Pennington’s
deposition. See Pls.’ Ex. 4, at 42, 57. These two disjointed pages of plaintiff Pennington’s
deposition state only that Pennington asked firefighters who had been detailed to the class
associated with the controversial exam about whether they would be interviewed in connection
with the “cheating scandal,” see id. at 42 (stating that firefighters told Pennington that they “were
informed that they would be interviewed by the Inspector General’s office over the cheating
scandal”), and that Pennington discussed race-related issues with Sgt. Proctor “after the cheating
scandal,” see id. at 57 (testifying that Sgt. Proctor “told me that he was armed with the task of
bringing in more whites and women into the unit,” in conversation that took place “[a]fter the
scuttlebutt was already around about the alleged cheating scandal”). The defendants are correct
that this evidence does not even minimally establish that either of the plaintiffs engaged in
protected speech about the alleged “cheating scandal” involving Sgt. Proctor because it amounts
to no evidence at all. 23 Hence, the plaintiffs have failed to meet the first element of their First
Amendment claim as it relates to the alleged protected speech regarding the purported “cheating
23
Even if it were evidence of protected speech, it certainly would not provide any evidence that any of the DCFEMS
officials responsible for the resulting personnel action (removing the plaintiffs from the BVI) had any knowledge of
the purported speech.
43
scandal.” See, e.g., Veitch, 471 F.3d at 134 (non-moving party cannot rely on “mere allegations”
to defeat a motion for summary judgment).
b) Other Disclosures by Plaintiffs Not Protected by the First
Amendment
Finally, the Court will discuss two other instances of speech that the plaintiffs do not
specifically argue were protected by the First Amendment, but which they do argue were
connected to adverse employment actions: (1) the plaintiffs’ alleged disclosure of problems with
the Bridgewater fireworks investigation, and (2) the plaintiffs’ alleged disclosure of problems
with the K.A. arson investigation.
Beginning with the Bridgewater fireworks case, as the Court observed in its discussion of
these alleged disclosures in the context of the plaintiffs’ DCWPA claim, the plaintiffs’ evidence
about what they said regarding the Bridgewater investigation is murky and inconsistent. See
supra Part III.A.2(b). As a result, it is once again questionable whether and how the plaintiffs
spoke about the Bridgewater investigation at all. Assuming arguendo that the plaintiffs did
speak about supposed deficiencies in the Bridgewater investigation, the Court concludes that the
plaintiffs did so pursuant to their employment responsibilities, and not as citizens. See Garcetti,
547 U.S. at 421. Evaluating fire investigations like the one in the Bridgewater case was
undoubtedly a part of the plaintiffs’ job responsibilities as fire investigators, and the plaintiffs
claim that they spoke about deficiencies in the Bridgewater fireworks investigation in their
capacities as witnesses for the government—a responsibility that falls squarely within the job of
investigating criminal activity. See Pls.’ D.C. Opp’n at 24 (stating that plaintiff Bowyer revealed
problems with the investigation to AUSA Graves at a meeting “to prepare the case against
Timothy Bridgewater”). Under these circumstances, “the First Amendment does not ‘shield[]
from discipline the expressions’ [the plaintiffs] made.” Robinson, 480 F.3d at 1151 (quoting
44
Garcetti, 547 U.S. at 426); cf. Huppert v. City of Pittsburg, 574 F.3d 696, 707–08 (9th Cir. 2009)
(holding that police officer’s testimony to grand jury was not protected by First Amendment
because “California expects such testimony from its police officers”).
It is less clear whether the First Amendment protects plaintiff Bowyer’s trial testimony in
the K.A. arson case, which is the final example of potentially protected speech that the plaintiffs
claim led to an adverse and retaliatory action. See, e.g., Pls.’ D.C. Opp’n at 29–30. Unlike in the
Bridgewater fireworks case, plaintiff Bowyer testified in the K.A. arson trial for the defense “as
an expert with regards to general fire origin and cause and not with specifics to the case.” Pls.’
D.C. Facts ¶ 56; accord Def.’s Response to Pls.’ Statement of Disputed Facts (“D.C. Reply
Facts”) ¶ 56, ECF No. 59-1. There is no evidence to suggest that plaintiff Bowyer’s employment
responsibilities included testimony for a defendant when Bowyer was subpoenaed to do so. At
the same time, the D.C. Circuit has observed that, even where a government employee’s
supervisors does not want the employee to speak about a certain topic, and even though that
speech “might otherwise be just the sort of citizen speech protected by the First Amendment, the
uncommonly close relationship between [a public employee’s] duties and his advocacy before [a
public body] precludes protection.” Windsor v. Erste, 566 F.3d 209, 215 (D.C. Cir. 2009). In
the instant case, however, no such “uncommonly close relationship” is apparent because plaintiff
Bowyer was purportedly called to testify as an expert witness, not as a fact witness regarding his
professional involvement in the arson investigation. See Pls.’ D.C. Facts ¶ 56; D.C. Reply Facts
¶ 56. Furthermore, the D.C. Circuit has suggested in dictum that testimony subpoenaed by a
third party, which plaintiff Bowyer’s testimony was in the K.A. trial, is generally considered
outside of a public employee’s official duties. See Bowie v. Maddox, 653 F.3d 45, 46 n.1 (D.C.
Cir. 2011); accord Clairmont v. Sound Mental Health, 632 F.3d 1091, 1105–06 (9th Cir. 2011)
45
(holding that public employee’s subpoenaed testimony was as a private citizen); Morales v.
Jones, 494 F.3d 590, 598 (7th Cir. 2007) (“Being deposed in a civil suit pursuant to a subpoena
was unquestionably not one of [the plaintiff’s] job duties because it was not part of what he was
employed to do.”). Therefore, it is reasonable to conclude that plaintiff Bowyer’s testimony in
the K.A. trial was as a private citizen.
As discussed previously, whether or not plaintiff Bowyer’s testimony was on a matter of
public concern remains factually unclear due to the lack of evidence in the record regarding the
content of Bowyer’s testimony. The plaintiffs claim that Bowyer “responded truthfully to
questions by the defense regarding the problems with the investigation, evidence, and origin and
cause determination,” which allegedly included the contamination of evidence and failing to
properly rope off the scene, see Pls.’ D.C. Opp’n at 24–25 (citing Pls.’ Ex. 51, ECF No. 55-2), 24
though the plaintiffs have not submitted any portions of the transcript from Bowyer’s testimony.
In light of the paramount importance of adjudicating a defendant’s guilt or innocence, however,
the Court concludes that all testimony given in a criminal trial necessarily falls within the arena
of public concern. Therefore, although the content of plaintiff Bowyer’s trial testimony is
unclear, the context of the speech alone is sufficient to allow the Court to conclude that the
testimony was on a matter of public concern. See, e.g., Green v. Phila. Hous. Auth., 105 F.3d
882, 887 (3d Cir. 1997) (“[T]he context of a courtroom appearance raises speech to a level of
public concern, regardless of its content.” (citing Pro v. Donatucci, 81 F.3d 1283, 1291 (3d Cir.
1996)). 25
24
Plaintiffs’ Exhibit 51 is merely a copy of the subpoena directed to Bowyer, and it does not include any description
or summary of his testimony.
25
In so holding, the Court acknowledges that “other circuits are divided over whether the context of a courtroom
appearance raises a public employee witness’s testimony to the level of public concern, regardless of its content.”
Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 926 n.6 (9th Cir. 2004) (collecting cases). The Third and Fifth
Circuits squarely hold that “the context of a courtroom appearance raises speech to a level of public concern,
46
Nevertheless, the plaintiffs have failed to “refute the [defendants’] showing . . . that
[they] would have reached the same decision in the absence of the protected speech.” Robinson,
480 F.3d at 1149. Although this is a “question[] of fact ordinarily for the jury,” Tao, 27 F.3d at
639, a complete absence of evidence on this element would entitle the defendants to summary
judgment. See Celotex, 477 U.S. at 323 (“[A] complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial.”). As
discussed above, the relevant “decision” that the plaintiffs allege was in retaliation for plaintiff
Bowyer’s testimony in the K.A. trial was the decision to reassign the plaintiffs to the CSU. See
Pls.’ D.C. Opp’n at 50. The defendants contend that the plaintiffs were reassigned to the CSU
“to afford the Department an opportunity to investigate concerns raised by the OAG, and in
particular, those raised by Deputy Attorney General Robert Hildum.” Def. D.C.’s Mem. of P. &
A. in Supp. of Its Mot. Summ. J. (“D.C. Mem.”) at 26, ECF No. 49. In his sworn declaration and
deposition testimony, defendant Rubin stated that he met with Hildum on August 21, 2008, the
same day of the reassignment decision. See Rubin Decl. ¶ 3. In this meeting, Hildum informed
defendant Rubin about the OAG’s concerns that, inter alia, plaintiff Bowyer had perjured
himself in the Bridgewater case, the plaintiffs had improperly provided information to defense
counsel without permission in cases prosecuted by the OAG, and the plaintiffs had failed to read
regardless of its content.” Green, 105 F.3d at 887 (citing Pro, 81 F.3d at 1291); see also Johnston v. Harris Cnty.
Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir. 1989) (“When an employee testifies before an official
government adjudicatory or fact-finding body he speaks in a context that is inherently of public concern.”). Other
Circuits, however, have refused to adopt such a categorical rule. See Padilla v. S. Harrison R-II Sch. Dist., 181 F.3d
992, 996–97 (8th Cir. 1999) (holding that teacher’s “compelled testimony” about “the propriety of a sexual
relationship between a teacher and a nonstudent minor” did not relate to a matter of public concern); Wright v. Ill.
Dep’t of Children & Family Servs., 40 F.3d 1492, 1505 (7th Cir. 1994) (“[O]ur cases have rejected a blanket rule
according absolute First Amendment protection to communications made in the course of a lawsuit” because “airing
private gripes in the form of a complaint or testimony cannot alter their status as private gripes”); Arvinger v. Mayor
& City Council of Balt., 862 F.2d 75, 78–79 (4th Cir. 1988) (holding that government employees testimony at
coworker’s fair employment hearing was not on a matter of public concern because it “was made solely to further
the interests of [the plaintiff and his coworker]” and not “to further the public debate on employment discrimination,
drug policy, or any other topic”). Complicating matters further, the D.C. Circuit has yet to address this particular
question.
47
Miranda rights to the suspect in the K.A. arson case. See id. ¶¶ 8–12; Defs.’ Ex. I at 63:1–64:16,
ECF No. 48-2 (testifying that Hildum described, inter alia, “perjury, described inefficiency in
effectiveness, lack of cooperation, described hiding, concealing, confusing evidence”). Hildum
also informed defendant Rubin that the OAG had placed the plaintiffs on the Lewis List, and
“they would no longer be allowed to testify on behalf of the District in the prosecution of
criminal cases.” Rubin Decl. ¶ 13. Since “[w]orking with OAG prosecutors was the essential
part of [the] job duties of Pennington and Bowyer,” defendant Rubin “decided they should be
detailed out of the [FIU].” Id. ¶¶ 14–15.
The plaintiffs offer no evidence to rebut the defendants’ showing, though they do offer
two arguments. First, the plaintiffs argue that “[t]he investigation into Plaintiffs’ testimony,
based on complaints by Deputy Attorney General Hildum, [which] stemmed directly from their
truthful disclosures in court, was in itself a retaliatory action and therefore cannot be a legitimate,
independent justification for Plaintiffs’ transfer.” Pls.’ D.C. Opp’n at 50. This is wrong for two
reasons. First, calling the plaintiffs’ testimony “truthful disclosures in court” begs the question
because the purpose of the investigation was to determine just that: the truth or falsity of the
testimony. See Defs.’ Ex. I at 68:3–16 (describing how plaintiffs were “innocent until proven
guilty” and were reassigned “in the interim . . . to take them out of the pathway of not being able
to write reports, not being able to testify, not being able to conduct investigations or
inspections”). More importantly, the investigation itself could not have been “retaliatory,” as the
plaintiffs argue, because it was triggered by someone outside of the DCFEMS: Deputy Attorney
General Hildum, who informed defendant Rubin that the plaintiffs “would not be allowed to
participate in any court proceedings, [and] would not ever be called on again as a city witness”
because “[t]hey lacked veracity, in his opinion.” Id. at 64:10–13. These concerns were later
48
memorialized in letters to defendant Rubin on October 27–28, 2008. See Defs.’ Reply Exs. B–C,
ECF No. 59-3.
Second, the plaintiffs argue that the District cannot show that it would have taken the
same actions because “[t]he District treated Plaintiffs less favorably than other FIU personnel
who were under investigation.” Pls.’ D.C. Opp’n at 50–51. The only specific example the
plaintiffs offer is that of a white investigator, James Taylor, who the plaintiffs say “was sent to
training in New Mexico while awaiting a conclusion of the investigation into allegations of his
criminal, civil, and administrative violations.” Id. at 51. First and foremost, the plaintiffs offer
no evidence to support this assertion other than their own conclusory statements. See id. (citing
Pls.’ Ex. 23, a memorandum written by plaintiff Bowyer to Assistant Fire Chief Alfred Jeffrey,
making same allegations without support). Furthermore, the assertion itself would be
insufficient to rebut the defendants’ showing because the plaintiffs do not specify what
“criminal, civil, and administrative violations” were being investigated and whether they were
similar to the allegations against the plaintiffs. A separate portion of the record indicates that
Investigator Taylor “had been held in contempt in a domestic relations matter,” see Collins Decl.
¶ 17; see also Pennington Decl. ¶ 57 (referencing “James Taylor being found guilty of contempt
and awaiting sentencing”), but the plaintiffs do not say whether this is what they mean when they
refer to “criminal, civil, and administrative violations” on the part of Investigator Taylor.
Treating similarly situated employees differently would, if supported, rebut the
defendants’ showing that they would have reassigned the plaintiffs absent the protected activity.
See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008) (plaintiff may
demonstrate pretext by “produc[ing] evidence suggesting that the employer treated other
employees . . . more favorably in the same factual circumstances”). The plaintiffs, however,
49
have produced no evidence to demonstrate that Investigator Taylor was treated differently or that
he was similarly situated to the plaintiffs. First, the plaintiffs’ purported evidence indicates that
Investigator Taylor “was removed from the unit while under investigation,” just as the plaintiffs
were, which suggests that Investigator Taylor was not actually treated differently. See Pls.’ Ex.
23, at 6. Furthermore, the plaintiffs’ alleged conduct, i.e., perjuring themselves while testifying
pursuant to their official duties, would be substantially different, and much more serious, than a
firefighter held in contempt in a domestic relations matter that is unconnected to his professional
duties. Such a factual distinction would logically warrant differing treatment by the DCFEMs.
Therefore, the plaintiffs have not rebutted the defendants’ showing that they would have taken
the same actions absent the plaintiffs’ protected activity, and thus the plaintiffs have failed to
produce evidence to establish an essential element of their First Amendment claim.
As a result of the foregoing analysis, the plaintiffs have failed to submit sufficient
evidence to establish at least one essential element of their First Amendment claim because they
have either failed to put forth statements that were made “as a citizen upon matters of public
concern,” Connick, 461 U.S. at 147, or they have failed to “refute the [defendants’] showing . . .
that [they] would have reached the same decision in the absence of the protected speech.”
Robinson, 480 F.3d at 1149. 26 Therefore, the defendants are entitled to summary judgment on
the plaintiffs’ First Amendment claim.
26
Also, for the reasons discussed in relation to the plaintiffs’ DCWPA claim, plaintiff Bowyer’s EEOC complaint
cannot serve as the basis for a retaliation claim insofar as the claimed retaliation was the reassignment of the
plaintiffs to the CSU. See supra Part III.A.2(c). Despite the fact that plaintiff Bowyer’s EEOC complaint likely
enjoys First Amendment protection, the record indicates that it was not completed until after the reassignment to the
CSU took place and thus, logically, could not have been the trigger for, or even affected, the decision to reassign the
plaintiffs to the CSU. See id.
50
C. Claim for Violation of Right to Contract
The plaintiffs’ final claim, brought pursuant to 42 U.S.C. § 1983, is that the defendants
“deprived Plaintiffs of their right to contract on the same basis as white persons in violation of 42
U.S.C. § 1981.” Compl. ¶ 59. The nub of this claim, like the plaintiffs’ first two claims, is that
the defendants retaliated against the plaintiffs for engaging in protected activity. The plaintiffs
allege that their protected activity was “opposing race discrimination in the Department, by
reporting it internally and filing charges with the EEOC and the [D.C. Office of Human Rights,
or DCOHR].” Id. ¶ 60. Furthermore, the plaintiffs appear to argue that the defendants retaliated
against them by “institut[ing] a discriminatory policy” that gave preferential treatment to white
firefighters in the FIU. See Pls.’ Rubin Opp’n at 18 (“Defendant instituted a discriminatory
policy pursuant to which the adverse actions against Plaintiffs were taken.”); Pls.’ D.C. Opp’n at
35–36 (citing “a race-based policy adopted by Defendant Rubin aimed at increasing the number
of white investigators in the [FIU]” as the mechanism through which their contract rights were
deprived).
The Supreme Court has clearly held that “42 U.S.C. § 1981 encompasses claims of
retaliation.” CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2008). The plaintiffs’ cause of
action, however, is not brought under 42 U.S.C. § 1981 directly. Rather, the plaintiffs’ cause of
action is brought under 42 U.S.C. § 1983, which provides a legal remedy for “the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws” that is perpetrated
“under color of [state or District of Columbia law].” See 42 U.S.C. § 1983. The plaintiffs’
theory is that the allegedly adverse employment actions taken against them in retaliation for their
allegedly protected activities “deprived them of their rights to contract in violation of 42 U.S.C.
§ 1981” and “were taken under color of law within the meaning of 42 U.S.C. § 1983.” Pls.’ D.C.
51
Opp’n at 32 (internal quotation marks omitted). Section 1981 provides that “[a]ll persons within
the jurisdiction of the United States shall have the same right in every State and Territory to
make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). The
statute further provides that “the term ‘make and enforce contracts’ includes the making,
performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b).
The plaintiffs were precluded by the Supreme Court’s holding in Jett v. Dallas
Independent School District, 491 U.S. 701 (1989), from bringing an independent cause of action
against the defendants pursuant to § 1981 because § 1981 does not provide a direct remedy
against state actors. The plaintiffs acknowledge as much. See, e.g., Pls.’ D.C. Opp’n at 31. In
Jett, the Supreme Court held that “the express ‘action at law’ provided by § 1983 for the
‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws,’
provides the exclusive federal damages remedy for the violation of the rights guaranteed by
§ 1981 when the claim is pressed against a state actor.” Jett, 491 U.S. at 735. Therefore,
although the plaintiffs have no right of action against the defendants under § 1981 directly, they
are permitted to sue the defendants under § 1983 to remedy the alleged deprivation of the rights
secured by § 1981. 27
Having established that the plaintiffs are permitted to bring their claim for the deprivation
of their § 1981 rights under § 1983, the Court will now address the defendants’ argument that the
plaintiffs’ § 1981 claim must fail because the plaintiffs are not employed pursuant to a contract.
27
In this regard, the defendants misread the holding of Jett. They argue that the plaintiffs’ § 1983 claim is “an
attempt to circumvent the Jett holding,” Rubin Reply at 1, but nothing could be further from the truth. The Court in
Jett specifically contemplated that plaintiffs who had been deprived of their rights under § 1981 by state actors could
sue the state actors responsible for the deprivation through the remedy provided in § 1983. See Jett, 491 U.S. at 735.
The defendants’ incorrect reading of Jett would absurdly result in all state actors being immune from suit for
depriving citizens of their rights under § 1981.
52
See D.C. Mem. at 18–21; Def. Rubin’s Mem. of P. & A. in Supp. of Mot. Summ J. (“Rubin
Mem.”) at 8–11, ECF No. 48; Def. Palmer’s Mem. of P. & A. in Supp. of His Mot. Summ. J.
(“Palmer Mem.”) at 8–11, ECF No. 47. The Supreme Court has made clear that “[a]ny claim
brought under § 1981 . . . must initially identify an impaired ‘contractual relationship’ under
which the plaintiff has rights.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006)
(citation omitted). The defendants argue that “District of Columbia personnel are not hired
pursuant to an employment contract,” but rather “they are appointed to public service and their
employment relationship is governed by applicable statutes and regulations, not private contract
principles.” D.C. Mem. at 19. This argument, “is one frequently raised by the District, but as
often as it has been raised, it has been rejected.” Graves v. District of Columbia, 777 F. Supp. 2d
109, 120 (D.D.C 2011); see, e.g., Wilk v. District of Columbia, 730 F. Supp. 2d 20, 23 n.3
(D.D.C. 2010); Hamilton v. District of Columbia, 720 F. Supp. 2d 102, 114 (D.D.C. 2010);
Kennedy v. D.C. Gov’t, 519 F. Supp. 2d 50, 59–61 (D.D.C. 2007). Most relevant to this case, the
D.C. Circuit has held that “members of the District of Columbia Fire Department are the
counterparts of employees of state and local governmental units, rather than federal
employees . . . . , and they retain an independent right of action under section 1981.” Torre v.
Barry, 661 F.2d 1371, 1374–75 (D.C. Cir. 1981); see also Kennedy, 519 F. Supp. 2d at 60(“[E]ven if District of Columbia law provides that [a plaintiff’s] public employment is generally
held by statute instead of contract, the federal interest for § 1981 claims predominates in this
situation since ‘[t]he right to dispose of one’s labor freely by contract is at the heart of the
protections afforded by § 1981.’” (quoting Sagana v. Tenorio, 384 F.3d 731, 737 (9th Cir.
2004))).
53
In support of their argument, the defendants rely heavily on two cases: Kizas v. Webster,
707 F.2d 524 (D.C. Cir. 1983) and Butler v. Pennsylvania, 51 U.S. (10 How.) 402 (1851). In
Kizas, the D.C. Circuit held that FBI employees had no vested contractual right to a “special
preference” accorded to clerical and support personnel in making appointments to special agent.
Kizas, 707 F.2d at 534–37. In so holding, the Circuit said that “federal workers serve by
appointment, and their rights are therefore a matter of legal status even where compacts are
made.” Id. (internal quotation marks omitted). The Court went on to say that “‘[t]hough a
distinction between appointment and contract may sound dissonant in a regime accustomed to
the principle that the employment relationship has its ultimate basis in contract, the distinction
nevertheless prevails in government service.’” Id. (quoting Riplinger v. United States, 695 F.2d
1163, 1164 (9th Cir. 1983)). The holding of Kizas, however, is inapposite for two reasons: (1) it
applied only to federal employees, which the Circuit in Torre made clear is a critical distinction,
see Torre, 661 F.2d at 1374–75; and (2) it did not involve § 1981 claims.
The defendants’ reliance upon Butler is even farther afield. Butler is an antebellum
Supreme Court decision that dealt with three Pennsylvania Canal Commissioners who claimed
that a Pennsylvania statute, which lowered Commissioners’ salaries from $4 per day to $3 per
day, violated the Contracts Clause of the U.S. Constitution. See Butler, 51 U.S. at 414–15. The
Supreme Court held that the Pennsylvania legislature had the power to amend the compensation
of Canal Commissioners by statute and that the Commissioners had no vested contractual right in
earning $4 per day, rather than $3 per day. See id. at 416–17. Although the Supreme Court
arrived at this holding by using some broad language about the nature of public employment,
there is little doubt that Butler’s holding carries little, if any, weight in interpreting 42 U.S.C.
§ 1981—a statute that was not even passed until nearly twenty years after Butler was decided,
54
and which was intended to “provid[e] a vehicle for every employee to remedy racial
discrimination in the workplace,” Lauture v. Int’l Bus. Machs. Corp., 216 F.3d 258, 263 (2d Cir.
2000). Thus, the Court declines the defendants’ invitation to grant summary judgment on the
basis that the plaintiffs have not identified an impaired contractual relationship under which they
have rights.
With respect to the individual defendants, the plaintiffs must demonstrate that the
defendants, while acting under color of state law, deprived them of their rights under § 1981.
See 42 U.S.C. § 1983. With respect to the District, the plaintiffs must also satisfy an extra
element beyond the predicate deprivation of rights: They must demonstrate that “the violation of
[their] right to make contracts protected by § 1981 was caused by a custom or policy” of the
District. Hamilton, 720 F. Supp. 2d at 114 (internal quotation marks omitted); see also Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (“[I]t is when execution of a government’s policy
or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible under
§ 1983.”). Thus, the Court will begin by discussing whether the plaintiffs have established a
predicate deprivation of their rights under § 1983 and whether the individual defendants were the
ones who caused those deprivations.
Since the plaintiffs’ retaliation claim is based upon circumstantial evidence, it is subject
to the familiar tripartite burden-shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). 28 See Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009).
Under that framework, the burden initially falls upon the plaintiff, who must first establish a
prima facie case of retaliation “by showing (1) that he engaged in statutorily protected activity;
28
The McDonnell Douglas framework is, of course, traditionally applied to claims brought pursuant to Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et. seq. The plaintiffs, however, have chosen not to
assert a claim under Title VII for reasons that are not apparent from the record.
55
(2) that he suffered a materially adverse action by his employer; and (3) that a causal link
connects the two.” Id. If the plaintiff succeeds in establishing a prima facie case, the burden
then shifts to the defendant “to produce a ‘legitimate, nondiscriminatory reason’ for its actions.”
Id. (quoting Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)). Finally, if the defendant
does so, “the burden-shifting framework disappears, and a court reviewing summary judgment
looks to whether a reasonable jury could infer intentional . . . retaliation from all evidence.”
Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004).
Although the parties largely ignore the first element of the prima facie case—whether the
plaintiffs engaged in statutorily protected activity—the Court will address this element in
determining whether summary judgment is appropriate. To qualify as protected activity under
§ 1981, a disclosure must complain about “a practice that the employee reasonably and in good
faith believed was unlawful under [§ 1981].” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.
Cir. 2012). “Not every complaint garners its author protection under [§ 1981].” Broderick v.
Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006). For example, “ambiguous complaints that do
not make the employer aware of alleged discriminatory misconduct do not constitute protected
activity.” Int’l Healthcare Exch., Inc. v. Global Healthcare Exch., LLC, 470 F. Supp. 2d 345,
357 (S.D.N.Y. 2007).
In their Complaint, the plaintiffs say that this protected activity generally involved
“opposing race discrimination in the Department, by reporting it internally and filing charges
with the EEOC and DCOHR.” Compl. ¶ 60. In their briefing, the plaintiffs also point to a set of
specific examples of what they say were conversations with their superiors in the FIU regarding
race discrimination. See Pls.’ Rubin Opp’n at 19–20; Pls.’ Palmer Opp’n at 23–25. These
examples include: (1) speaking at a firefighters’ union meeting about “the disparity in the unit”
56
and “detail firemen in the unit with no training,” see Pls.’ Ex. 4, at 119; (2) informing defendant
Palmer that Sgt. Proctor had helped white firefighters cheat, see Pls.’ Rubin Opp’n at 19;
(3) speaking with Lt. Duck on multiple occasions about “preferential treatment” for white
firefighters, see Pls.’ Ex. 4, at 96; (4) notifying Sgt. Proctor and Assistant Fire Chief Lee that Lt.
Duck “was retaliating against Plaintiffs for raising questions about Lt. Duck’s assignment of
unqualified white firefighters to perform fire investigation and law enforcement tasks,” see Pls.’
Rubin Opp’n at 19; see also Pls.’ Exs. 20, 22, ECF No. 55-2; (5) “rais[ing] concerns” about
“problems with fire investigations resulting from the assignment of unqualified white firefighters
to conduct and lead investigations,” see Pls.’ Rubin Opp’n at 19–20; and (6) filing internal EEO
complaints and external EEOC complaints alleging race discrimination within DCFEMS, see
Pls.’ Exs. 37–38, 41–42.
There is evidence in the record to support the fact that some of these disclosures took
place, but the substance of the disclosures in the record does not match the characterization of
those disclosure proffered by the plaintiffs. For example, the record contains evidence that the
plaintiffs complained about Lt. Duck’s management style on at least two occasions, and the
DCFEMS also attempted to address that issue internally on two occasions. See Pls.’ Exs. 20–22.
The record is unclear at best, however, about whether the plaintiffs’ complaints about Lt. Duck
included complaints about race discrimination. Although the plaintiffs now characterize their
disclosures in race-based terms, the record evidence cited by the plaintiffs indicates that their
complaints within the FIU were not couched in those terms. For example, plaintiff Bowyer
complained in an e-mail to defendant Palmer and others about Lt. Duck’s “passive aggressive
management style” and his “spread[ing] misinformation to officials about me” that had created a
“hostile work environment,” but a racial motivation was never mentioned or even implied. See
57
Pls.’ Ex. 20, at 4. On another occasion, plaintiff Bowyer “vent[ed]” to Assistant Fire Chief Lee
that Lt. Duck had formed a “team” within FIU that excluded him, plaintiff Pennington, and Sgt.
Proctor and that Lt. Duck “attack[ed]” him, plaintiff Pennington “and other members,” but again
race was not mentioned. See Pls.’ Ex. 22, at 1–2. None of this evidence supports the assertion
that the plaintiffs spoke out about “preferential treatment” for white firefighters or other racial
discrimination. The first time the record indicates that the plaintiffs explicitly complained about
race discrimination was in their internal EEO complaints, which the plaintiffs say they submitted
in June 2008. See Pls.’ Exs. 37–38. 29 The plaintiffs made similar complaints in their EEOC
charges in August and September 2008. See Pls.’ Exs. 41–42.
Other than the plaintiffs’ EEO and EEOC complaints, however, there is no evidence in
the record—aside from the plaintiffs’ self-serving deposition testimony—that would permit a
reasonable jury to conclude that the plaintiffs engaged in activity protected under § 1981. The
record indicates that the plaintiffs’ complaints about Lt. Duck’s management style and “passive
aggressive” demeanor are not protected activity under § 1981. See McGrath, 666 F.3d at 1380;
Valles-Hall v. Ctr. for Nonprofit Advancement, 481 F. Supp. 2d 118, 154 n.23 (D.D.C. 2007) (to
be protected, it must be objectively reasonable for the plaintiff to believe that he was opposing an
employment practice that violated § 1981). 30 Although the plaintiffs may have speculated
among themselves that the behavior of Lt. Duck and others was racially motivated, there is no
evidence to suggest that their belief was objectively reasonable, and more importantly, there is
29
Aside from the self-serving assertions in the plaintiffs’ deposition testimony, there is no evidence to support the
fact that the plaintiffs spoke about race discrimination at a firefighters’ union meeting, and there is no evidence
whatsoever that the plaintiffs informed defendant Palmer that Sgt. Proctor had helped white firefighters cheat.
30
Assistant Fire Chief Lee indicated in his deposition testimony that the plaintiffs complained to him about
“individuals being assigned FIU duties not meeting the requirements,” but Lee also testified that the plaintiffs were
vague about who was unqualified and why, the complaints involved “throw[ing] out some names and say[ing] that
people weren’t qualified” in “gripe sessions,” and Lee never testified that the plaintiffs complained that this practice
was related to racial discrimination. See Pls.’ Ex. 18, at 198, ECF No. 55-2.
58
no evidence that the plaintiffs outwardly articulated that their complaints had a racial dimension
until they filed their internal EEO complaints in June 2008. Simply put, an employees’
complaints about his boss or his displeasure with the way his workplace is run is not protected
activity under § 1981 unless those complaints could reasonably be interpreted to include some
nexus to racial discrimination. Therefore, the only protected activities that the plaintiffs have
provided evidence of are their internal EEO complaints in June 2008 and their external EEOC
complaints in August and September of 2008. Therefore, as to those disclosures, the plaintiffs
satisfy the first element of their prima facie case.
As to the second element of the prima facie case, the plaintiffs’ arguments are once again
vague and somewhat inconsistent. On the one hand, the plaintiffs contend that the adverse
employment action taken against them was, in general, the race-based policy of giving
preference to white firefighters in the FIU. See Pls.’ Rubin Opp’n at 18; Pls.’ D.C. Opp’n at 34–
38. On the other hand, the plaintiffs also point to the same discrete employment actions that they
cited in support of their DCWPA and First Amendment claims (i.e., reassignment to the CSU,
removal of privileges, modification of work schedule, removal from BVI). See Pls.’ Rubin
Opp’n at 25–27; Pls.’ Palmer Opp’n at 23–25. Giving the plaintiffs the benefit of all reasonable
inferences, the Court will construe their argument to be that the adverse employment actions
taken against them were the four discrete actions already discussed, which the plaintiffs argue
were done pursuant to a race-based policy of favoring white firefighters and punishing African
American firefighters. 31 Furthermore, as already discussed, see supra Part III.A.1, three of those
four discrete actions qualify as adverse employment actions for purposes of the plaintiffs’ § 1981
31
To the extent that the plaintiffs attempt to craft their § 1981 claim under a “disparate impact” theory, i.e., that the
DCFEMS’s facially race-neutral changes to the requirements for placement in the FIU had a disparate adverse
impact upon the plaintiffs as African Americans, this theory is unavailable under § 1981. See Gen. Bldg.
Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 383 n.8, 391 (1982); Berger v. Iron Workers Reinforced
Rodmen Local 201, 843 F.2d 1395, 1430 (D.C. Cir. 1988).
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claim: (1) removing the plaintiffs from the Burned Vehicle Unit (“BVI”); (2) taking away the
plaintiffs’ take-home car privileges and call-back privileges and moving them to an office space
that housed the K-9 unit; and (3) reassigning the plaintiffs to the Community Service Unit
(“CSU”). Therefore, the plaintiffs also satisfy the second element of their prima facie case.
Finally, as to the third element of the prima facie case, the plaintiffs run into many of the
same problems that undermined their DCWPA and First Amendment claims. Since the Court
has already found that the plaintiffs’ only § 1981 protected activity that is supported by record
evidence began with the filing of internal EEO complaints in June 2008, it would be impossible
for a reasonable jury to conclude that the plaintiffs’ protected activity had anything to do with the
plaintiffs being removed from the BVI in March 2007 or the plaintiffs getting moved to the K-9
unit and having their take-home care and call-back privileges removed in November 2007. The
reassignment of the plaintiffs to the CSU, however, could have had a causal link to the plaintiffs’
protected activity. Although the Court has already concluded that the plaintiffs’ EEOC
complaints could not have motivated the reassignment to the CSU because they were not
completed until after the reassignment took place, see supra Part III.A.2(c), the plaintiffs’
internal EEO complaints may have played a role in the reassignment to the CSU.
In order for the plaintiffs to successfully establish a prima facie causal link between the
EEO complaints and their reassignment to the CSU, however, they must also show that the
person or persons responsible for the reassignment had knowledge of the protected activity. See,
e.g., Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985) (“The causal connection component
of the prima facie case may be established 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.”). The order reassigning the plaintiffs to the CSU came from Assistant Fire Chief
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Alfred Jeffrey, though that order was approved by defendant Palmer, see Defs.’ Ex. A at 95, ECF
No. 47-2; Pls.’ Ex. 5, ECF No. 55-2, and the record also indicates that defendant Rubin was the
one who instructed Jeffrey to give the order, see Rubin Decl. ¶ 17. The plaintiffs offer no
evidence, however, that defendants Palmer and Rubin or Assistant Fire Chief Jeffrey were aware
of the plaintiffs’ EEO complaints before the reassignment decision was made. In fact, the
plaintiffs offer no evidence that anyone outside the EEO Department had any knowledge that the
plaintiffs had filed internal complaints at the time of the decision to reassign the plaintiffs. See
Pls.’ Exs. 37–40, ECF No. 55-2. 32 The plaintiffs state that there was a “likelihood of
management’s knowledge of Plaintiffs’ protected disclosures” based solely on the fact that the
reassignment occurred “[s]hortly after” the protected activity. See Pls.’ Rubin Opp’n at 26. Yet,
mere temporal proximity does not, by itself, support a reasonable inference that management was
aware of the protected activity. Indeed, such an inference would essentially eviscerate the
plaintiffs’ already minimal burden to prove knowledge at all. Without even a scintilla of
evidence on this crucial point, the plaintiffs once again find themselves wholly lacking evidence
to support an element of their prima facie case. Therefore, the Court need not go any further in
analyzing the plaintiffs’ § 1981 claim and must grant summary judgment to the defendants.
Even assuming, however, that the plaintiffs were able to produce evidence that
defendants Palmer or Rubin or Assistant Fire Chief Jeffrey had been aware of the EEO
complaints before the reassignment decision was made, the defendants have put forth a
legitimate, nondiscriminatory reason for the reassignment that has gone unrebutted by the
plaintiffs. Specifically, as discussed previously, the defendants contend that the plaintiffs were
reassigned to the CSU “to afford the Department an opportunity to investigate concerns raised by
32
Indeed, neither party has offered any evidence, one way or the other, regarding when, or if, the defendants were
aware of the plaintiffs’ internal EEO complaints.
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the OAG, and in particular, those raised by Deputy Attorney General Robert Hildum.” D.C.
Mem. at 26. See generally supra Part III.B.2.
The plaintiffs offer no evidence to rebut this legitimate, nondiscriminatory reason for the
plaintiffs’ reassignment. The plaintiffs’ only rebuttal is to redeploy the very same speculation of
pretext, based solely on temporal proximity, that they attempted to use in establishing their prima
facie case. See, e.g., Pl.s’ Rubin Opp’n at 26 (“This very close proximity in time is sufficient to
establish that Plaintiffs’ demotions were in fact taken in retaliation for their protected
disclosures . . . .”). The plaintiffs also argue that “Dennis Rubin was not informed by Hildum of
Hildum’s concerns about Plaintiffs until October 28, 2008.” See id. (citing Pls.’ Exs. 34–35).
On October 27–28, 2008, the OAG sent letters to defendant Rubin that more fully described the
reasons for the plaintiffs’ placement on the Lewis List, see Defs.’ Reply Exs. B–C, though
defendant Rubin testified that Hildum informed him in person of the decision to place the
plaintiffs on the Lewis List as early as August 21, 2008, see Rubin Decl. ¶¶ 3, 8–15; Defs.’ Ex. I
at 63:1–64:16. The fact that Hildum chose later to elaborate formally upon the OAG’s concerns
is not enough for a reasonable jury to infer that the defendants’ stated reasons for the
reassignment are pretext (which would also necessitate an inference that defendant Rubin
committed perjury in his sworn declaration and deposition testimony). Furthermore, the
plaintiffs admit that they were notified on June 21, 2008—two months before their reassignment
to the CSU—that they had been placed on the Lewis List “because it was believed that they had
perjured themselves during the Bridgewater case.” Pls.’ D.C. Opp’n at 11. Therefore, even had
the plaintiffs been able to establish a prima facie case of retaliation, the defendants would still be
entitled to summary judgment.
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IV. CONCLUSION
For the reasons discussed above, the plaintiffs have failed to produce sufficient evidence
to establish one or more essential elements of their claims under the DCWPA, the First
Amendment, and 42 U.S.C. § 1981. Therefore, the Court will grant the defendants’ motions for
summary judgment in their entirety.
An appropriate Order accompanies this Memorandum Opinion.
Date: December 20, 2012
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
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