Emmette McCORMICK, Jr., Plaintiff, v. The DISTRICT OF COLUMBIA, et al., Defendants.
Case No. 1:07-CV-570.
United States District Court, District of Columbia.
Oct. 22, 2012.
895 F. Supp. 2d 59
JAMES S. GWIN, District Judge.
Ronald William Gill, Office of Attorney General, Erica Taylor McKinley, Attorney General‘s office for the District of Columbia, Washington, DC, for Defendants.
OPINION & ORDER—AMENDED
[Resolving Doc. No. 72.]
JAMES S. GWIN,1 District Judge.
In this long-running dispute, Plaintiff Emmette McCormick, Jr. says the District and individual defendants Wanda Patten and Devon Brown terminated his employment with the District of Columbia‘s Department of Corrections in violation of District of Columbia law and his Fifth Amendment rights. Defendants now seek summary judgement. They say that McCormick had no constitutionally-protected interest, that existing statutes provide adequate process for challenging a wrongful termination, that his termination was neither retaliatory nor wrongful, and that qualified immunity protects the individual defendants. Plaintiff McCormick opposes the motion because, he says, genuine disputes of material fact necessitate a jury trial. Because the Court finds that District statutes afforded McCormick adequate process, that the individual defendants are entitled to qualified immunity and that he has not shown that his discharge was retaliatory, the Court GRANTS Defendants’ motion for summary judgment as to Counts I, II, III, IV, and V. Because the Court lacks jurisdiction over Plaintiff‘s wrongful discharge
claim, the Court DISMISSES Count VI
I. Facts
In March 2006, the District of Columbia Department of Corrections fired Plaintiff, Supervisory Correctional Officer Emmette McCormick. [Doc. 73 at 7.] McCormick says that the events leading to his termination began with two incidents in March 2005, one involving a leak by the Office of Internal Affairs and the other involving a crack cocaine seizure. He says that as a result of these events Internal Affairs retaliated and sought to have him fired. He says that while their initial attempts failed, Internal Affairs later succeeded based on his involvement in a third event in January 2006, where Internal Affairs found that McCormick struck a handcuffed inmate, Michael Tobias.
A. Leak Incident
McCormick says the chain of events that led to his termination began in March 2005, while he was serving as Acting Captain-in-Charge of the Special Management Unit. [Doc. 73 at 7.] Around this time then-Acting Warden of the Central Detention Facility, Larry Lee Corbett, received official notice that statements taken by then-Internal Affairs Investigator Defendant Wanda Patten in another case had been improperly released. [Doc. 73 at 10] The statements, given by two correctional officers, identified the two correctional officers as witnesses to an inmate‘s assault of a third correctional officer and contained their home addresses. [Doc. 73, 10.] In an attempt to minimize the damage caused by this potentially-dangerous disclosure, Corbett ordered Plaintiff McCormick to search inmates’ cells for copies of the Internal Affairs statements. [Doc. 73 at 10-11.] McCormick found unredacted copies of the statements in the cell of one inmate and prepared a report implicating Internal Affairs and Defendant Patten in the leak. [Doc. 73 at 7, 11.] He transmitted his report to Internal Affairs among others. [Doc. 73 at 11.]
B. Crack Cocaine Incident
McCormick says that Internal Affairs, disgruntled by his accusations, sought his termination in response. [Doc. 73 at 7.] Later in March, 2005, McCormick says he oversaw the seizure of crack cocaine from an inmate‘s cell. [Doc. 73 at 11.] He arrived after the seizure, examined the seized substance, tested it, and determined that it was crack cocaine. [Doc. 73 at 11-12.] He then directed the officer who had conducted the seizure to prepare a written report of the incident. [Doc. 73 at 12.] The officer‘s initial report said that the officer had seized the crack with the aid of a drug-sniffing dog. [Doc. 73 at 12.] Subsequently, however, another officer informed McCormick that the dog only assisted the officers after the crack had already been seized. [Doc. 73 at 12.] McCormick says he notified his superiors of this discrepancy and ordered the report corrected. [Doc. 73 at 12.] Shortly thereafter, he says Internal Affairs, under the direction of Defendant Patten, conducted an investigation into the changing of the report. [Doc. 73 at 12.] On June 9, 2005, Defendant Patten produced a report of her findings. [Doc. 73 at 12.]. On August 1, 2005, the then-Internal Affairs Chief transmitted the report to the Deputy Mayor with a recommendation to fire McCormick for some unexplained interference with the investigation of the arrest circumstances. [Doc. 73 at 12.] The Deputy Mayor declined, however, to follow the recommendation. [Doc. 73 at 12.]
C. Tobias Incident
While some details remain contested regarding the events immediately preceding Plaintiff‘s termination, the parties do not
D. Termination
As McCormick would have it, this would have been the end of this saga but for two intervening events, an investigation of the Tobias incident and his renewed efforts to implicate internal affairs in the leak incident. First, a woman representing herself to be a family member of Michael Tobias emailed a City Council member alleging that Plaintiff McCormick physically mistreated Tobias. [Doc. 73 at 1-2; Doc. 72 at 6.] That email eventually prompted an investigation of the Patten incident by Internal Affairs and overseen by Defendant Patten. [Doc. 73 at 1-2; Doc. 72 at 6.] During the investigation, Defendant Internal Affairs Investigator Patten took statements from numerous witnesses, but did not conduct an adversarial hearing. On March 9, 2006, the investigation culminated in a thirteen-page report, which concluded that “Lt. McCormick struck inmate Michael Tobias across the right side of his face with an open hand at least once while he was handcuffed in the sally port of the Southwest (3) housing unit on January 13, 2006.” [Doc. 73-10.] McCormick vehemently contests this conclusion. [Doc. 73 at 26-29.]
Second, McCormick says that on February 13, 2006, while the investigation was taking place, he wrote to Defendant Corrections Director Brown, then recently-appointed as Director of the Department of Corrections, again alleging that Defendant Internal Affairs Investigator Patten was responsible for the leaked statements found in the inmate‘s cell in March 2005. [Doc. 73 at 31.] McCormick says that after Defendant Brown received this transmission, Defendant Patten relayed the allegations of the Tobias incident to Defendant Brown. [Doc. 73 at 31.] At that point, McCormick says, Corrections Director Brown ordered Internal Affairs to investigate the Tobias incident and placed McCormick on administrative leave. [Doc. 73 at 31.] McCormick‘s briefing gives no dates for these alleged events.
McCormick says that on the basis of Internal Affairs’ report of the Tobias incident, Defendant Corrections Director Brown ordered McCormick fired for cause. [Doc. 73 at 20-21; 31.]
McCormick says that his termination coupled with the Internal Affairs report infringe his constitutionally protected liberty interests, violate DC whistleblower protections, and constitute common-law wrongful discharge. His constitutional claims proceed on two theories. Counts one and two allege that the District, and individual defendants, respectively, deprived McCormick of his constitutionally protected liberty interest in pursuing a career in corrections. [Doc. 3.] Counts three and four allege that his termination coupled with the threat of disclosure of information about the circumstances un-
Defendants now move for summary judgment. First, they argue that Plaintiff has no liberty interest in continued employment because he was an at will employee and that his professional reputation was not defamed. [Doc. 72 at 9-32.] Second, they say that plaintiff did not exhaust administrative remedies under the DC Comprehensive Merit Personnel Act. Third, Defendants Devon Brown and Wanda Patten say they are qualifiedly immune. [Doc. 72 at 32-34.] Fourth, Defendants say that Plaintiff‘s alleged whistleblowing activities do not fall within the statute‘s protections. [Doc. 72 at 36-39.] Finally, Defendants say that Plaintiff‘s wrongful discharge claims are unsubstantiated. [Doc. 72 at 38-39.] Plaintiff counters that materially disputed facts as to each issue warrant a jury trial.
II. Summary Judgement
Summary judgment is appropriate when “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
A defendant moving for summary judgment has the initial burden of showing the absence of a genuine factual issue with respect to one or more essential elements of the plaintiff‘s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving defendant meets his burden by “informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which [he] believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, (quoting
Once the moving defendant satisfies his burden, the burden shifts to the nonmoving plaintiff to set forth specific facts showing a triable issue. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving plaintiff may not defeat the summary judgment motion merely by showing some existence of doubt as to the material facts. See id. at 586. Nor can the nonmoving plaintiff rely upon the mere allegations or denials of her pleadings.
In deciding a motion for summary judgment, the Court views the factual evidence and draws all reasonable inferences in favor of the nonmoving plaintiff. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). To be sure, the Court need not conclusively resolve an allegedly disputed issue in favor of the nonmoving plaintiff; rather, the plaintiff must present “sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat‘l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). Ultimately the Court must decide “whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so
III. Constitutional Claims
Counts I and III charge violations of Plaintiff‘s constitutionally protected liberty interests.2 Termination of a public employee may impair the employee‘s liberty interest in pursuing a chosen career. See Bd. of Regents v. Roth, 408 U.S. 564, 572-73 (1972). An employee can make out such a claim in two ways: First, he may prove that the government‘s charges in conjunction with termination “might seriously damage his standing and associations in his community.” Id. at 573; see also O‘Donnell v. Barry, 148 F.3d 1126, 1139-40 (D.C. Cir. 1998). Second, he may demonstrate that government “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Id. at 1140. In either case, if the employee can show a protected interest, “due process would accord an opportunity to refute the charge.” Id.
A. Liberty Interest
1. Damage to Standing and Association
Government deprives an employee of a protected liberty interest where it “stigmatiz[es] his good name” in conjunction with “an accompanying loss of government employment.” Mosrie v. Barry, 718 F.2d 1151, 1160 (D.C. Cir. 1983) (quoting Paul v. Davis, 424 U.S. 693, 706 (1976)). “[I]njury to reputation cannot occur in the absence of public disclosure of the allegedly damaging statements.” Orange v. Dist. of Columbia, 59 F.3d 1267, 1274 (D.C. Cir. 1995). An internal report, neither widely circulated “nor made available to the public,” does not constitute stigmatization. Id. The parties here do not contest that Plaintiff lost his employment, and the Court assumes for the sake of argument that the allegations that plaintiff struck a restrained inmate could damage his reputation. Still, the Court finds no evidence that Defendants “public[ly] disclos[ed]” these allegations.
Plaintiff asserts that the evidence adduced satisfies the public disclosure element in two ways. First, he says that the government need not make public disclosures itself. Instead, it should suffice that he “is required to communicate that [sic] the fact that he was terminated for using excessive force on every government application he is ever going to file” and that private employers likewise require disclosure of his record. [Doc. 73 at 40.] Second, Plaintiff says that Defendants “themselves published the charges against Mr. McCormick by filing their motion for summary judgement on the public record.” [Doc. 73 at 40 n. 8.]
Plaintiff errs.3 First, a requirement that information be transmitted to pro-
spective employers coupled with “[r]estricted disclosure of such material to other federal agencies, with clear limits on further distribution, is not stigmatizing and does not infringe upon constitutional liberty interests.” Doe v. Cheney, 885 F.2d 898, 910 (D.C. Cir. 1989). Every case of which the Court is aware has presumed that “public disclosure” requires exactly that: The Government must make public a stigmatizing allegation. See Orange, 59 F.3d at 1274, Cheney, 885 F.2d at 910 (“NSA did not make public accusations.“); see also Quinn v. Shirey, 293 F.3d 315, 320 (6th Cir. 2002) (“[C]harges must be made public. . . . [P]ublic dissemination must have been voluntary.“), Wojcik v. Mass. State Lottery Comm‘n, 300 F.3d 92, 103 (1st Cir. 2002) (Plaintiff “failed to adduce any evidence that the allegedly stigmatizing statements were disseminated by government actors in a formal setting.“). The facts that Plaintiff has adduced fail to satisfy this burden. Moreover, even if the District does transmit Plaintiff‘s file to other agencies, so long as it limits distribution, such distribution does not infringe his liberty interest. See Doe, 885 F.2d at 910.
Plaintiff‘s second claim, that Defendants “themselves published the charges against Mr. McCormick by filing their motion for summary judgement on the public record,” fares no better. [Doc. 73 at 40 n. 8.] Deprivation of a constitutionally protected liberty interest occurs where “stigma[] . . . accompan[ies] loss of government employment.” Mosrie, 718 F.2d at 1160. The allegedly stigmatizing event in this case—the public filing of documents on August 10, 2010—did not accompany the loss of employment. The loss of employment, by Plaintiff‘s own account, took place some four years earlier on March 31, 2006. [Doc. 73 at 1.]
For the foregoing reasons, McCormick has not shown that the Government infringed a protected liberty interest by publicly distributed stigmatizing information about him in conjunction with his termination. Still McCormick‘s liberty interest claim can proceed if he can show that result Defendants’ actions virtually foreclose from employment in the field.
2. Foreclosure from Employment
Where government imposes “a stigma or other disability that foreclose[s] . . . freedom to take advantage of other employment opportunities,” it deprives a person of constitutionally protected liberty. Roth, 408 U.S. at 573. A plaintiff may show that the government‘s actions have this effect in either of two ways. First, he can show that the government‘s actions “formally or automatically exclude” him “from other government employment opportunities.” Kartseva v. Dep‘t of State, 37 F.3d 1524, 1528 (D.C. Cir. 1994). Alternatively, a plaintiff can show that government “action precludes her from pursuing her profession.” Id. at 1529. McCormick claims the latter. He says that “being dismissed for allegedly hitting a restrained inmate will ‘self-evidently’ bar Mr. McCormick from further employment in that occupation.” [Doc. 73 at 37.] Responding, the Defendants argue that the record contains no such evidence. [Doc. 78 at 4.] With regard to this issue, the Court finds sufficient evidence to raise a triable issue of fact.
At least three criteria govern employability for due process purposes: the nature and severity of the allegation,
B. Due Process
The Due Process Clause guarantees that no person “shall . . . be deprived of life, liberty, or property, without due process of law.”
The District says it provided two avenues for McCormick to clear his name. First, during the Internal Affairs investigation into the Tobias incident, Plaintiff gave a statement and provided written statements. [Doc. 72 at 15-21.] Second, the District says that Plaintiff should have pursued administrative remedies under the Comprehensive Merit Personnel Act (CMPA).
By its plain language, the CMPA applies to Plaintiff and gives him the basic safeguard of a name-clearing hearing.4 With exceptions not applicable here, the CMPA “applie[s] to all employees of the District
of Columbia government.”
Still, the CMPA procedures must comply with the standard delineated by Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See Doe, 753 F.2d at 1113. Mathews requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 334.
The CMPA procedures satisfy these requirements. As to the first Mathews factor, McCormick‘s interest is not a property interest in his position, but a liberty interest related to future employment. While the liberty interest is important, the immediate circumstances of the termination of previous employment are less important.5 In cases of “discharge amidst allegations of unprofessionalism” the “remedy is a ‘name-clearing hearing.‘” See Doe, 753 F.2d at 1102. “[N]ame-clearing” suggests that this Court need not determine the precise moment of deprivation, but only whether McCormick received adequate process before the Tobias allegations became indelibly attached to his record. The CMPA provides McCormick these procedures.
Under the CMPA, “[t]he Office [of Employee Appeals] may order oral argument, on its own motion or on motion filed by any party within 15 days, and provide such other procedures or rules and regulations as it deems practicable or desirable in any appeal under this section.”
appropriate action the Court may deem necessary.”
Since these procedures are adequate under this set of facts, the Court need not consider the third Mathews factor, the government‘s interest and an alternative set of procedures. In sum, the CMPA satisfies the Due Process requirements of a name-clearing hearing for a plaintiff deprived of a constitutionally protected liberty interest in professional employment in a chosen field.
IV. Qualified Immunity
The foregoing analysis also suffices to show why qualified immunity protects Defendants Corrections Director Brown and Internal Affairs Investigator Patten. “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In no particular order, “a court must decide whether the facts that a plaintiff has . . . shown (see Rules 50, 56) make out a violation of a constitutional right” and “whether the right at issue was ‘clearly established’ at the time of defendant‘s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009); see id. at 236. Because McCormick has not shown a violation of a constitutional right, Defendants Brown and Patten are entitled to qualified immunity.
McCormick would have to show that Defendants Brown and Patten publicly disclosed information damaging to his professional reputation or that they foreclosed him from a career in corrections without due process. But McCormick presents no evidence that Defendants Brown or Patten disclosed the information in his personnel file. Instead, he says that the findings may force him to disclose the information. [Doc. 73 at 40.] Likewise, the Court finds no evidence that Defendants Brown or Patten denied McCormick a name-clearing hearing under the CMPA. [Doc. 73 at 42-44.] McCormick‘s claim that “the Deputy Mayor denied his request for a post-termination meeting” does not imply that he was denied a name-clearing hearing under the CMPA nor that Defendants Patten and Brown were involved. [Doc. 73 at 22.] Accordingly, the Court grants Defendants summary judgement on Count II and IV.
V. Whistleblower Claim
In addition to constitutional claims, Plaintiff also raises claims under the DC whistleblower statute,
Under the DC whistleblower statute, “[a] supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate against an employee because of the employee‘s protected disclosure or because of an employee‘s refusal to comply with an illegal order.”
once it has been demonstrated by a pre-
The McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), framework governs D.C. whistleblower cases. Johnson v. District of Columbia, 935 A.2d 1113, 1118 (D.C. 2007). At summary judgement, a plaintiff must “challenge the motion for summary judgment with a proffer of admissible evidence that their “protected activity” . . . was a “contributing factor” in her adverse employment actions. Id. Yet even if a plaintiff makes such a proffer, summary judgment for the defendant is nonetheless appropriate where plaintiff “[can]not counter the [defendants‘] explanation that appellants would have been [disciplined] anyway, for an unrelated, legitimate reason.” Id. at 1120. In building a prima facie case, “the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.” Id. (further citation omitted). And “an inference of retaliation cannot rest solely on ‘temporal proximity’ (even if it is established) where the opportunity for retaliation conflicts with the opponent‘s explicit evidence of an innocent explanation of the event.” Id.
The Court doubts but nonetheless assumes that McCormick has made a prima facie case that his termination was in retaliation for protected disclosures. Yet he has not shown that his termination would not have occurred “for an unrelated, legitimate reason.” Id. at 1120. The record shows that the Department of Corrections terminated Plaintiff because Internal Affairs found that he struck a restrained inmate. [Doc. 72 at 39.] On this point, Plaintiff offers no evidence to the contrary. [Doc. 73 at 35.]
The Court acknowledges that Plaintiff has shown a dispute of fact regarding whether Plaintiff struck a restrained inmate. But whether Plaintiff struck a restrained inmate is a wholly different factual question from whether the Department of Corrections terminated Plaintiff because its investigation found that he had. The latter question controls this claim; the former is irrelevant.
[A] party cannot stave off a grant of summary judgment merely by filing any type of affidavit, sworn discovery material, or any document that merely happens to touch upon the subject matter of the case. The evidence proffered in opposition to a motion for summary judgment must be, on its own, clearly responsive to the factual requirements for proving liability.
Id. at 1122. Here, Plaintiff fails to meet his burden. Plaintiff points to no factual material contesting the “unrelated, legitimate reason” for his termination. Id. at 1120. In fact, he cites evidence showing the opposite: “McCormick was terminated for cause ‘based on an Internal Affairs investigative finding.‘” [Doc. 73 at 21.] Accordingly, the Court grants summary judgement for the District on Plaintiff‘s whistleblower claim.
Plaintiff also claims that his termination constitutes common law wrongful discharge. The parties’ briefing is strikingly devoid of legal analysis on this point; they apparently presume that this issue turns on the same questions as Plaintiff‘s whistleblower claim. These assumptions are misplaced. “Under the Comprehensive Merit Personnel Act (‘CMPA‘),
VII. Conclusion
For the foregoing reasons, the Court GRANTS the Defendants’ motion for summary judgment as to Counts I through V and DISMISSES Count VI pursuant to
IT IS SO ORDERED.
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE