McCormick v. District of Columbia ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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:
EMMETTE MCCORMICK, JR., : CASE NO. 1:07-CV-570
:
Plaintiff, :
:
vs. : OPINION & ORDER
: [Resolving Doc. No. 57.]
THE DISTRICT OF COLUMBIA, et al., :
:
Defendants. :
:
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JAMES S. GWIN,1/ UNITED STATES 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
1/
The Honorable James S. Gwin of the United States District Court for the Northern District of Ohio, sitting by
designation.
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jurisdiction over Plaintiff’s wrongful discharge claim, the Court DISMISSES Count VI under Federal
Rule of Civil Procedure 12(b)(1).
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
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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. 73at 12.] Subsequently, however, another officer informed McCormick that the dog
only assisted the officers after the crack had already been seized. [Doc. 73at 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 dispute the general chain of events. On January 13, 2006 a corrections
officer mistakenly released a substantial number of inmates from their cells. [Doc. 73 at 13; Doc.
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72 at 5.] Numerous correctional officers, including Plaintiff McCormick responded to order inmates
back into their cells. [Doc. 73 at 13; Doc. 72 at 5.] McCormick alleges that while he worked to
control the situation, an inmate on a higher floor threw water on him. [Doc. 73 at 13; Doc. 72 at 5.]
Uncontradicted witness statements then say that McCormick ordered the inmate he believed
responsible, Michael Tobias, to an area of the prison known as the “Sally Port.” [Doc. 73 at 16; Doc.
72 at 6.] Some guard-witnesses gave statements testified that McCormick slapped handcuffed inmate
Tobias while in the “Sally Port.” Other guard-witnesses said they did not see, or were not in a
position to see, McCormick strike Tobias. [Doc. 73 at 16–19; Doc. 72 at 6.]
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,
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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 underlying his termination deprived him of a constitutionally protected liberty interest
in his professional reputation. [Doc. 3.] McCormick also says that his termination violated the D.C.
Whistleblower Statute, D.C. Code § 615.53(a) because protected disclosures—his reports on the leak
incident–were a contributing factor to his termination. [Doc. 3.] Finally, McCormick says that the
District wrongfully terminated him because of these disclosures. [Doc. 3.]
Defendants now move for summary judgment. First, they argue that Plaintiff has no liberty
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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.” Fed. R. Civ. P. 56(c).
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 Fed. R. Civ. P. 56(c)). However, the moving defendant is under no “express or
implied” duty to “support [his] motion with affidavits or other similar materials negating the
opponent's claim.” Id.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
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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. Fed.R.Civ.P.
56(e).
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 one-sided that one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
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
2/
Counts II and IV also charge constitutional violations against defendants Patten and Brown pursuant to 42
U.S.C. § 1983, but the Court finds that qualified immunity protects these defendants, and so does not discuss these counts
here. See infra Part IV.
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that government “imposed on him a stigma or other disability that foreclosed his freedom to take
advantage of other employment opportunities.” Id.; see also O’Donnell 148 F.3d 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.]
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Plaintiff errs.3/ First, a requirement that information be transmitted to prospective 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. Shirley, 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,” fairs 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
3/
In support of this interpretation of “publicly disclosed,” Plaintiff relies on a single quotation from Defendant’s
Memorandum in Support of Summary Judgement, which cites Gray v. Union Cnty. Intermediate Ed. Dist., 520 F.2d 803,
806 (9th Cir. 1975). That case offers no support for such a reading; instead the Ninth Circuit held that the magnitude
of the allegations did not rise to constitutional level. The case thus provides little persuasive authority. The only other
case of which this court is aware in which a court held that a note in a personnel file constituted disclosure was
overturned on other grounds. See Jones v. McKenzie, 628 F. Supp. 1500 (D.D.C. 1986); rev’d on other grounds 833
F.2d 335; vacated 490 U.S. 1001.
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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, the range of employment from which a plaintiff claims he is foreclosed, and
plaintiff’s actual post-termination employment. In O’Donnell, the D.C. Circuit found that a demoted
police official suffered no deprivation of liberty where the reasons for demotion related to public
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statements, and he soon found employment as a police chief in a small town. See 148 F.3d at 1141.
By contrast, Kartseva concerned a Russian translator who was denied a security clearance for
unknown reasons and claimed that as a result she could not find employment as a Russian translator.
See 37 F.3d at 1529–30. There, the Court of Appeals found that the translator stated a claim
warranting further factual development. Id. No evidence shows Plaintiff has been able to find
further employment in corrections or a comparable field. He states he is employed as a driver. [Doc.
73-1 at 10.] And McCormick’s testimony, given his experience in corrections, provides sufficient
evidence to raise a triable issue as to whether his firing for striking a handcuffed inmate would make
him unemployable in corrections. [Doc. 73-1 at 9.] While this is a close case, this evidence is
sufficient to raise a triable issue of whether he had a liberty interest in future employment that could
not be taken without an opportunity to be heard. Still, Plaintiff must show that this deprivation
occurred without due process.
B. Due Process
The Due Process Clause guarantees that no person “shall . . . be deprived of life, liberty, or
property, without due process of law.” U.S. Const. amend. V (emphasis added). In cases involving
a liberty interest in professional employment, the well-settled remedy “mandated by the Due Process
Clause of the [Fifth] Amendment is an ‘opportunity to refute the charge.’ ” Doe v. U.S. Dep’t of
Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985) (quoting Codd v. Velger, 429 U.S. 624, 627 (1977)
(quoting Roth, 408 U.S. at 573 )). Where a plaintiff“can demonstrate that [her employer] harmed her
professional standing without providing the proper procedural protections, her remedy is a
‘name-clearing’ hearing.” Id.The District says it provided two avenues for McCormick to clear his name. First, during the
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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). D.C. Code §§ 1-
601, et seq. [Doc. 72 at 12-15.] In response, McCormick says that the Internal Affairs investigation
provided insufficient process because he never saw the evidence against him and had insufficient
opportunity to present his side of the case. [Doc. 73 at 41–42.] He further says that the
administrative review procedures under the CMPA do not apply to him. [Doc. 73 at 5.] The Court
doubts that McCormick’s ability to give statements to Internal Affairs Investigator Patten resulted
in any procedural due process claim. Because the post-termination procedures provide for a name-
clearing hearing, the Court finds that the District provided Plaintiff adequate process irrespective of
whether McCormick had a chance to present his position to Internal Affairs Investigator Patten .
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 “appl[ies] to all employees
of the District of Columbia government.” D.C. Code § 1-602.01. Plaintiff evidently concedes that
the CMPA applies to him because he has filed claims under it—namely Count V, which invokes
D.C. Code § 1-615.51 et seq. [Doc. 73 at 29–35.] And the CMPA provides for a name-clearing
hearing: An employee may challenge “an adverse action for cause that results in removal,”
whereupon “the Office shall review the record and uphold, reverse, or modify the decision of the
4/
Plaintiff relies on a a footnote from Holman v. Williams, which says “[p]laintiff's wrongful termination claim
is not preempted by the CMPA because the statute offers no administrative recourse to at-will employees for claims
related to their termination.” 436 F. Supp. 2d 68, 76 (D.D.C. 2006). Yet that footnote was in context of explaining that
the CMPA did not preempt that plaintiff’s common law wrongful discharge claim. McCormick’s strained, plain-text
reading goes too far. His constitutional claim is not related to challenging his termination, but instead the facts that
foreclose him from future employment. Here, the CM PA provides adequate relief because it permits Plaintiff to
challenge the allegations against him and clear his name.
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agency.” D.C. Code § 1-606.03(a).
Still, the CMPA procedures must comply with the standard delineated by Mathews v.
Eldridge, 424 U.S. 319 (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.
Matthews, 424 U.S. at 334.
The CMPA procedures satisfy these requirements. As to the first Matthews 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.” D.C. Code §
5/
In suits alleging deprivation of a liberty interest through foreclosure from a career, the moment of deprivation
is difficult to discern. It could occur either at McCormick’s termination or at the moment he unsuccessfully sought
further employment. The import is this: A post-termination name-clearing hearing constitutes pre-deprivation process
in the latter case, but does not in the former. W hile the parties dispute whether McCormick should have received more
pre-termination process, this Court need not decide this question. See Doe, 753 F.2d at 1114 (“[T]he administrative
burdens involved in a post-termination Codd hearing do not in any way interfere with the Department's employment
decisions.”).
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1-606.03(b). Moreover, “[a]ny employee or agency may appeal the decision of the Office to the
Superior Court of the District of Columbia for a review of the record and such Court may affirm,
reverse, remove, or modify such decision, or take any other appropriate action the Court may deem
necessary.” D.C. Code § 1-606.03. Almost by definition, judicial review satisfies the second
Matthew’s factor.
Since these procedures are adequate under this set of facts, the Court need not consider the
third Matthews 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
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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 Patton 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, D.C. Code § 1-615.52, and common law. Plaintiff says the actual motive for his termination
was retaliation for his protected disclosures in connection with the leak incident. [Doc. 73 at 31.]
He says that each time he repeated the disclosure, Defendants placed him under investigation and
sought his termination. Indeed after his initial disclosure, Internal Affairs recommenced his
termination in connection with the crack cocaine incident. [Doc. 73 at 31.] While this first
retaliation attempt failed, he says that Internal Affairs succeeded in obtaining his termination
following the Tobias incident. [Doc. 73 at 31.]
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.” D.C. Code
§ 1-615.53(a). An employee so subjected “may bring a civil action against the District.” D.C. Code
§ 1-615.54(a)(1). In the civil suit,
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once it has been demonstrated by a preponderance of the evidence that an activity
proscribed by § 1-615.53 was a contributing factor in the alleged prohibited personnel
action against an employee, the burden of proof shall be on the defendant to prove by
clear and convincing 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.
D.C. Code § 1-615.54(b). A “contributing factor” is “ any factor which, alone or in connection with
other factors, tends to affect in any way the outcome of the decision.” D.C. Code § 1-615.52(a)(2).
The McDonnell Douglas Corp. v. Green, 411 U.S. 792 (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
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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.
VI. Common Law Wrongful Discharge
Planitiff 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’), D.C. Code § 1-601.01 et seq.
(2001) , such common law claims are preempted.” Lewis v. Dist. of Columbia Dep’t of Motor
Vehicles, 987 A.2d 1134, 1137 (D.C. 2010). The force of preemption is particularly strong here
because “[t]he Council squarely addressed the issue itself, articulating an express public policy in
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favor of government employee whistleblowing and creating a specific, statutory cause of action to
enforce it.” Carter v. Dist. of Columbia, 980 A.2d 1217, 1226 (D.C. 2009). Accordingly, this Court
must “defer to the legislature's prerogatives and to decline to recognize a novel, competing cause of
action for wrongful discharge at common law.” Id. The Court dismisses Plaintiff’s wrongful
discharge claim for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1).
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 Federal Rule of Civil Procedure
12(b)(1).
IT IS SO ORDERED.
Dated: October 22, 2012 s/ James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
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