Evangelou v. District of Columbia , 63 F. Supp. 3d 96 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EVAN EVANGELOU, :
:
Plaintiff, : Civil Action No.: 11-cv-531 (RC)
:
v. : Re Document No.: 34
:
DISTRICT OF COLUMBIA, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff, Evan Evangelou, worked as a probationary police officer with the Metropolitan
Police Department (“MPD”) from September 2007 to March 2010. During this probationary
period, Plaintiff was accused of attempting to extort individuals at a local establishment. Plaintiff
was terminated following an MPD internal investigation, which concluded that Plaintiff had
engaged in misconduct. This termination occurred during Plaintiff’s probationary period.
Plaintiff has now brought suit pursuant to 42 U.S.C. § 1983 on two counts: 1) termination in
violation of 42 U.S.C. § 1983 for exercising his constitutional right against self-incrimination;
and 2) denial of due process in violation of 42 U.S.C. § 1983 for defamatory conduct implicating
a liberty interest under the Due Process Clause of the Constitution. Defendants, the District of
Columbia and its Chief of Police Cathy Lanier, move for summary judgment on both counts.
II. FACTUAL BACKGROUND
Plaintiff, Evan Evangelou, was hired as a probationary police officer with the MPD on
September 29, 2008. Am. Compl. ¶ 5, ECF No. 10. Plaintiff’s position was probationary for an
eighteen-month period, which was set to expire on March 29, 2010. Id. During this probationary
period, Plaintiff visited a bar called “My Brother’s Place.” Evangelou Dep. Ex.1, at 42:18–43:4,
49:12–18, Dec. 11, 2013, ECF No. 34. On Plaintiff’s first visit to the establishment, in November
2009, he allegedly witnessed a woman selling PCP in the bar’s bathroom. Id. at 43:9–22.
Plaintiff asserts that he brought this to the attention of a bouncer and then left the premises, as he
was off duty and could not take any official action. Id. Plaintiff visited this establishment again
on December 6, 2009. Following this visit, the manager and bouncers at the bar lodged a
complaint with MPD, stating that Plaintiff attempted to extort individuals at the establishment.
Id. at 49:21–51:18. Specifically, they stated that the Plaintiff attempted to coerce them into hiring
the Plaintiff and two “deputies” to take care of security problems at the bar, and offered to handle
a pending police investigation into the business for allowing underage drinking. Robinson Mem.
Ex. 2, at 1, ECF No. 34.
As a result of this allegation, the MPD relocated Plaintiff to a desk job and began an
internal investigation of the incident. Am. Compl. ¶¶ 7–8. An investigator from the MPD’s
Internal Affairs Division contacted Plaintiff in order to interview him. Id. ¶ 8. However, Plaintiff,
after counsel from his attorney, invoked his Fifth Amendment right against self-incrimination,
and refused to answer any questions or make any statement with regard to this investigation. Id.;
Evangelou Dep. 58:6–59:18. At the conclusion of the investigation, MPD found that Plaintiff had
“engaged in misconduct that will additionally be presented to the USAO for criminal review.”
Robinson Mem. Ex. 2, at 5. On this basis, Agent Robinson “recommended that Officer
Evangelou’s employment with [MPD] . . . be terminated.” Id. Thereafter, the Director of Human
Resource Management Division sent a memorandum to Chief Cathy Lanier, recommending that
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Plaintiff be terminated based on the misconduct. Human Resources Mem. Ex. 3, ECF No. 34.
Chief Lanier terminated Plaintiff effective March 19, 2010. Lanier Letter Ex. 4, ECF No. 34.
Since his termination, Plaintiff has only applied to two police officer positions in New
York and New Jersey. Evangelou Dep. 14:13–15:3. After passing the written exam for the New
York Police Department, Plaintiff was asked to complete paperwork with the Department’s
“investigators.” Id. at 16:5–21, 22:1–20. The record does not clearly indicate whether Plaintiff
was denied this job, and if so, for what reasons. Plaintiff similarly passed the written exam for
the New Jersey Police Department, but admits that he did not further pursue this opportunity
after the Department asked him for documentation relating to previous employment. Id. at 15:4–
16:3. Plaintiff has not applied to any other police departments, although he has browsed several
departments’ websites. Id. at 14:13–22.
Plaintiff has brought suit pursuant to 42 U.S.C. § 1983 on two counts: 1) termination in
violation of 42 U.S.C. § 1983 for exercising his constitutional right against self-incrimination;
and 2) denial of due process in violation of 42 U.S.C. § 1983 for defamatory conduct implicating
a liberty interest under the Due Process Clause of the Constitution. Defendants move for
summary judgment on both counts.
III. LEGAL STANDARD
A court may grant summary judgment when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A “material” fact is one capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine”
if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott
v. Harris, 550 U.S. 372, 380 (2007).
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The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-movant
must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See
Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must “eschew
making credibility determinations or weighing the evidence[,]” Czekalski v. Peters, 475 F.3d 360,
363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most
favorable to the non-movant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions
offered without any evidentiary support do not establish a genuine issue for trial. See Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
IV. ANALYSIS
A. Count I: Alleged Violation of Constitutional Right Against Self-Incrimination
Plaintiff first asserts that Chief of Police Cathy Lanier terminated Plaintiff because he
refused to make a statement to the investigating officer without the protections set forth in
Garrity v. New Jersey, 385 U.S. 493 (1967), and instead asserted his Fifth Amendment right
against self-incrimination. Am. Comp. ¶ 13. But Plaintiff’s claim fails because he fails to present
any evidence, or even make any arguments, that he was terminated because he exercised his Fifth
Amendment right against self-incrimination.
“Like other individuals, government employees enjoy the protection of the privilege
against self-incrimination. Yet the government, like private employers, needs to ensure that its
employees are faithfully performing their duties. The government therefore may fire employees
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who refuse, on the basis of their Fifth Amendment privilege, to answer questions concerning the
performance of their duties, so long as the employees’ answers could not be used against them in
a criminal prosecution.” Nat’l Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 286, 291 (D.C. Cir.
1993) (citing Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation, 392 U.S. 280, 284–85
(1968); Gardner v. Broderick, 392 U.S. 273, 278–79 (1968); Garrity, 385 U.S. at 49); accord
Chavez v. Martinez, 538 U.S. 760, 768 (2003) (citing Lefkowitz v. Cunningham, 431 U.S. 801,
806 (1977); Lefkowitz v. Turley, 414 U.S. 70, 84–85 (1973)) (noting that “governments may
penalize public employees and government contractors (with the loss of their jobs or government
contracts) to induce them to respond to inquiries, so long as the answers elicited (and their fruits)
are immunized from use in any criminal case against the speaker”).
Public employees and government contractors cannot, however, constitutionally be given
the “Hobson’s choice between self-incrimination and forfeiting [their] means of livelihood.”
Gardner, 392 U.S. at 277. “[T]he state must,” therefore, “decide whether to demand a statement
from an employee [or contractor] on job-related matters, in which case it may not use the
statement in a criminal prosecution.” United States v. Vangates, 287 F.3d 1315, 1321 (11th Cir.
2002). What the government cannot do is both demand a potentially self-incriminating statement
and reserve the right to use that statement in a later criminal proceeding. See Atwell v. Lisle Park
Dist., 286 F.3d 987, 990 (7th Cir. 2002) (Posner, J.) (“The government is not allowed to force a
person to make a statement, even out of court, that might be used as evidence that he had
committed a crime.”); Gulden v. McCorkle, 680 F.2d 1070, 1074 (5th Cir. 1982) (observing that
“it is the compelled answer in combination with the compelled waiver of immunity that creates
the Hobson’s choice for the employee”).
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In conducting an investigation into the potentially criminal conduct of a public employee,
“the government may either demand a self-incriminating statement or withhold immunity for the
use of the statement in a criminal proceeding—but not both.” Evangelou v. District of Columbia,
901 F. Supp. 2d 159, 166 (D.D.C. 2012). Here, the investigator did not demand a statement from
the Plaintiff, and informed him that anything he said could be used against him in a criminal
prosecution. Am. Compl. ¶ 8. Because Plaintiff did not have immunity for any statements he
made, the government could not also punish him for refusing to provide potentially self-
incriminating information. Nat’l Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 286, 291–92 (D.C.
Cir. 1993); see also Aguilera v. Baca, 510 F.3d 1161, 1172 n.5 (9th Cir. 2007) (“If [the police
officers being investigated were] not under compulsion [to answer questions], . . . then they had
the constitutional right to remain silent without fear of punishment.”).
Plaintiff alleges just that—that Chief Lanier terminated him precisely because he refused
to give a statement to the investigating officer, and instead chose to exercise his Fifth
Amendment right against self-incrimination. Am. Compl. ¶ 13. However, Plaintiff does not
substantiate this assertion with a single piece of evidence. Indeed, there is no indication that
Chief Lanier even knew that Plaintiff had asserted his right against self-incrimination. Defs.’
Mot. Summ. J. 6–7. Instead, the record indicates that Chief Lanier made her decision based on
the internal investigation report, which concluded by finding that Plaintiff had “engaged in
misconduct that will additionally be presented to the USAO for criminal review,” and
recommended that he be terminated. Robinson Mem. Ex. 2, at 5. The report does not state that
Plaintiff asserted his right against self-incrimination.1 Defs.’ Mot. Summ. J. 6–7.
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The report does state that Evangelou “did not provide a statement.” Robinson Mem. Ex. 2, at 2.
But Plaintiff does not argue that this simple statement equates with asserting a Fifth Amendment
right, or that Chief Lanier was aware of this fact.
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Plaintiff simply does not respond to the Defendants’ argument in his brief in opposition.
Accordingly, because there is no evidence that Chief Lanier terminated Plaintiff for exercising
his right to remain silent, or that she even knew that he had asserted this right, the Court grants
the Defendants’ motion for summary judgment as to Count 1.
B. Count II: Alleged Deprivation of a Liberty Interest Without Due Process
Plaintiff next argues that, as a result of his termination, he “has been wrongly and
unjustifiably stigmatized as being both unsuitable and unqualified for employment as a police
officer,” thus depriving him of a protected liberty interest in violation of the Due Process Clause.
Am. Compl. ¶ 26. In support of his sole argument with respect to this allegation, Plaintiff points
to a D.C. regulation, which provides in relevant part that “an agency shall terminate an employee
during the probationary period whenever his or her work performance or conduct fails to
demonstrate his or her suitability and qualifications for continued employment.” D.C. Mun.
Regs. tit. 6-B, § 814.1. Plaintiff argues that, viewed in light of this regulation, the mere fact that
he was terminated while still on a probationary period is, by its very nature, defamatory. Pl.’s
Opp’n to Defs.’ Mot. Summ. J. ¶ 4, ECF No. 36. But Plaintiff’s reading of this regulation is
overbroad and, because he cannot rely on it to turn an otherwise silent termination into a due
process violation, his “reputation-plus” claim fails. Moreover, because Plaintiff cannot establish
that his termination precluded him from pursuing his chosen career, his “stigma or disability”
claim fails as well.
Under the precedents of the Supreme Court and the D.C. Circuit, a government
employee’s due process rights are implicated when a firing or demotion is coupled with a
defamatory official statement, see Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C. Cir. 1983), or
when an adverse employment action (considered somewhat more broadly) is combined with “a
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stigma or other disability that foreclose[s] [the plaintiff’s] freedom to take advantage of other
employment opportunities,” O’Donnell v. Barry, 148 F.3d 1126, 1140 (D.C. Cir. 1998) (quoting
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 573 (1972)). The first type of claim is
known as a “reputation-plus” claim—“it presumably rests on the fact that official criticism will
carry much more weight if the person criticized is at the same time demoted or fired.” Id.; see
also Paul v. Davis, 424 U.S. 693, 709 (1976) (reading Roth to hold that “defaming an individual
in the course of declining to rehire him could entitle the person to notice and an opportunity to be
heard as to the defamation,” but not to suggest that “a defamation perpetrated by a government
official but unconnected with any refusal to rehire would be actionable” as a due process
violation). The second type of claim is known as a “stigma or disability” claim, because “it does
not depend on official speech, but on a continuing stigma or disability arising from official
action.” O’Donnell, 148 F.3d at 1140. The Court addresses each type of claim in turn.
1. The Plaintiff’s Reputation-Plus Claim
Plaintiff first alleges a “reputation-plus” claim, arguing that his termination was
accompanied by official defamation (i.e., termination during the probationary period). “Such a
claim requires some official action because government defamation alone is insufficient to create
a liberty interest under the Due Process Clause.” Dave v. D.C. Metro. Police Dep’t, 926 F. Supp.
2d 247, 250 (D.D.C. 2013) (internal quotation marks omitted) (quoting Aguirre v. SEC, 671 F.
Supp. 2d 113, 119 (D.D.C. 2009) (quoting Orange v. District of Columbia, 59 F.3d 1267, 1274
(D.C. Cir. 1995))). However, in order to maintain a reputation-plus claim, a plaintiff must also
“demonstrate that the stigmatizing reasons for h[is] discharge were disclosed to the public or
were made available to prospective employers or other government personnel.” Doe v. U.S. Dep’t
of Justice, 753 F. 2d 1092, 1113 (D.C. Cir. 1985); see also Dave, 926 F. Supp. 2d at 250
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(“[N]early all of the courts in this Circuit to have considered the issue, have held that, in order
for plaintiff to posses [sic] a liberty interest, the government must have publicly disclosed the
defamatory information.”); McCormick v. District of Columbia, 899 F. Supp. 2d 59, 66 (D.D.C.
2012) (“Every case of which the Court is aware has presumed that ‘public disclosure’ requires
exactly that: The Government must make public a stigmatizing allegation.”); De Sousa v. Dep’t
of State, 840 F. Supp. 2d 92, 110 (D.D.C. 2012) (dismissing the plaintiff’s “reputation-plus”
claim because the government never spread derogatory information about the plaintiff to any
third party).
Plaintiff does not point to a single piece of evidence demonstrating that the Defendants
publicly disclosed any defamatory statements, or that such information was made available to
prospective employers. There is no evidence that the Defendants specifically contacted the
Plaintiff’s potential employers. Nor is there evidence that the MPD released the reason for
Plaintiff’s termination or the results of its internal investigation to the public. Indeed, Defendants
assert that official personnel files, such as the Plaintiff’s employment file, “are considered
protected personnel records and are not subject to open inspection or review by any third party.”
Walton Decl. Ex. 5, at ¶¶ 6–7, ECF No. 34. A third party may view Plaintiff’s file only if the
third party presents a signed authorization of release by the employee. Id. This is a fatal flaw to
Plaintiff’s “reputation-plus” claim because, obviously, the alleged defamatory statements cannot
harm the Plaintiff’s reputation or his employment prospects if employers have no knowledge of
the statements. See McCormick, 899 F. Supp. 2d at 66 (D.D.C. 2012) (“Every case of which the
Court is aware has presumed that ‘public disclosure’ requires exactly that: The Government must
make public a stigmatizing allegation.”).
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Instead, Plaintiff argues that due to title 6-B, section 814.1 of the D.C. Municipal
Regulations, “[t]ermination . . . during his probationary period carries with it the clear and
unambiguous stigma that the plaintiff is both unsuited and unqualified to be a police officer.”
Pl.’s Opp’n. ¶ 6. Plaintiff explains that because the regulation and the probation period both exist
simply to determine the suitability of individuals as permanent police officers, his termination
during the probationary period sends the clear signal that the individual is unsuited for an officer
position. Id. ¶ 7. In essence, Plaintiff argues that his termination during the probationary period,
in conjunction with section 814.1, is equivalent to the public disclosure of defamatory
statements.
But Plaintiff’s logic is flawed and misconstrues section 814.1. Although the regulation
requires agencies to terminate probationary employees who are unsuited for a permanent
position, it does not specify that probationary employees may be terminated only for poor
performance. See, e.g., Piroglu v. Coleman, 25 F.3d 1098, 1104 (D.C. Cir. 1994) (interpreting a
structurally similar regulation and finding that the regulation “merely sets out certain
circumstances in which a probationary employee may be terminated” rather than “limit[ing] the
District’s discretionary right to otherwise terminate him”); Evangelou v. District of Columbia,
901 F. Supp. 2d 159, 171 n.5 (D.D.C. 2012) (finding Piroglu’s logic to “suggest that the mere
fact of Mr. Evangelou’s firing does not imply an official determination that ‘his . . . work
performance or conduct fail[ed] to demonstrate his . . . suitability and qualifications for
continued employment’”). As the Defendants assert, there are numerous reasons aside from
unsuitability for which an employee may be terminated during his probationary period: budget
concerns, personality conflicts, a change in the needs of the department, or a host of other
reasons. Accordingly, this Court cannot conclude that Plaintiff’s termination resulted in
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reputational damage simply due to the existence of section 814.1. Because Plaintiff is unable to
meet a necessary element of a “reputation-plus” claim, the Court finds that it is unable to survive
summary judgment.
2. Plaintiff’s Stigma or Disability Claim
Plaintiff also asserts a “stigma or disability” claim, but relies upon the same argument
previously discussed in his “reputation-plus” claim. Specifically, Plaintiff argues that section
814.1 sends a signal to other law enforcement agencies that individuals who are terminated
during their probationary period were terminated because they are unfit for service. It is for this
reason that Plaintiff asserts he was unable to find other work in law enforcement. As already
noted, however, termination pursuant to section 814.1 is not the only reason for which an officer
may be terminated during the probationary period. Officers can be terminated due to budgetary
constraints, change in departmental needs, personality conflicts, etc. Nor does Plaintiff show why
other law enforcement departments would automatically assume, without more, that Plaintiff’s
termination during the probationary period was due to his unsuitability as an officer.
Accordingly, Plaintiff cannot prove that he was stigmatized from an official action by simply
pointing to section 814.1’s existence.
Moreover, Plaintiff cannot show that he was actually excluded from employment
opportunities as a result of his termination. In order to establish a “stigma or disability” claim, a
plaintiff must show that a government action had “the broad effect of largely precluding [him]
from pursuing [his] chosen career.” Kartseva v. Dep’t of State, 37 F.3d 1524, 1528 (D.C. Cir.
1994). This can occur through an informal action that has the practical effect of precluding an
individual from the career. Id. at 1528–29. However, the action must “seriously affect, if not
destroy plaintiff’s ability to seek employment in his field or substantially reduce the value of his
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human capital.” Aguirre v. SEC, 671 F. Supp. 2d at 119 (internal quotation marks omitted).
Plaintiff has not made such a showing here. It is undisputed that Plaintiff has only applied to two
police departments since his termination—New York and New Jersey. Evangelou Dep. 14:13–
15:3. Although he browsed the website of a few other Departments, Plaintiff admits that he never
sent out other applications. Id.Plaintiff asserts that he was rejected from the New York Police Department after
disclosing that he had previously been terminated during his probationary period. Pl.’s Opp’n.
¶ 7. Although this provides some circumstantial evidence of the preclusive effects of his
termination, a single rejection alone is insufficient to establish that the Plaintiff’s ability to seek
employment was seriously affected or destroyed. Taylor v. Resolution Trust Corp., 56 F.3d 1497,
1506 (D.C. Cir. 1995) (holding that the “government action precluding a litigant from future
employment opportunities will infringe upon his constitutionally protected liberty interests only
when that preclusion is either sufficiently formal or sufficiently broad”) (emphasis added). And
Plaintiff has not, and cannot, establish a pattern of rejection. After all, Plaintiff voluntarily
withdrew his application from the New Jersey Police Department after he was asked to provide
information regarding previous employment history. Evangelou Dep. 15:4–16:3. And Plaintiff
failed to apply to other police departments. Id. at 15:1–3. Plaintiff’s failure to seek employment
opportunities precludes him from proving that his termination foreclosed opportunities for future
employment in the law enforcement field.2 See Orange v. District of Columbia, 59 F.3d 1267,
1275 (D.C. Cir. 1995) (holding that the plaintiffs “failed to demonstrate that the allegedly false
2
The parties do not define the “law enforcement” field or discuss whether this is the correct
career category to assess Plaintiff’s preclusion claim. The parties appear to assume that
preclusion from a job as a police officer equated with the “law enforcement” field. Although the
Court believes this definition may be too narrow (e.g., a showing that Plaintiff was precluded
from police officer positions may be insufficient to show that he was precluded from his chosen
career), the Court need not decide the matter.
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statements . . . foreclosed their opportunities for future government employment” because neither
“sought a position in the government” after their dismissals). Accordingly, a reasonable jury
could not find that the Defendants stigmatized Plaintiff in violation of his Due Process rights,
and so Plaintiff’s “stigma or disability” claim must also fail.
V. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED as
to all counts. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: August 11, 2014 RUDOLPH CONTRERAS
United States District Judge
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