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October 18, 1977

DISTRICT OF COLUMBIA, et al., Defendants

The opinion of the court was delivered by: SIRICA

This is an action in which plaintiff, Hercules Pinkney, challenges his dismissal as an employee of Federal City College, a public institution operated by the District of Columbia. Named as defendants are the District of Columbia, Richard K. Fox, Chairman of the District of Columbia Board of Higher Education, and Dr. Wendell P. Russell, President of Federal City College. Each of the individual defendants is sued in his official as well as individual capacity. Pinkney claims that his termination by Federal City College was in breach of contract, in violation of governing regulations and the fifth amendment to the Constitution and that his dismissal for the reasons stated by the College constituted defamation of character. For relief, Pinkney seeks reinstatement, restoration of back pay, correction of his personnel records and damages for defamation. The matter is presently here having come on for hearing on cross-motions for summary judgment.

 The background facts involve a long series of events stretching from July 1970, when Pinkney entered into an employment agreement with Federal City College, through December 1975, when he brought suit. In bare-bones outline, a summary of the undisputed facts indicates that Pinkney was without interruption employed by Federal City as an untenured educator from July 13, 1970 until September 17, 1973, at which time he received a notice of proposed termination effective December 17, 1973. *fn1" The reason given for the dismissal was lack of funding for Pinkney's position. Pinkney was thereafter kept on at the College pending consideration by College officials that he be recommended for an alternative position. However, by letter dated February 1, 1974, Pinkney was informed that the College administration had decided not to recommend him for appointment to a different post and that his termination was final. Pinkney then appealed his dismissal due to insufficient funds to the District of Columbia Board of Higher Education and was successful in gaining reinstatement. Pinkney was so notified by letter dated April 15, 1974.

 In the interim, however, Pinkney was indicted by a local grand jury on charges of conspiracy and false pretenses. This indictment led the College to renew its efforts to remove him. So on April 15, 1974, the same day, it should be pointed out, on which the College informed Pinkney that he was restored to his post as a result of his successful appeal, the College further informed Pinkney of a second proposal to remove him. This time the indictment provided the basis for removal. The letter of proposed termination provided that removal would not take place for 30 days and that Pinkney had the right to challenge the action by furnishing the College with information concerning the criminal charges leveled against him. Pinkney immediately responded to the notice of proposed termination, objecting to the reason given for his removal and further objecting to the request that he provide information about the charges pending against him before the matter came on for trial. The rationale for this objection was that requiring pretrial release of this information would compromise his fifth amendment right to refrain from compelled self-incrimination. In an effort to preserve his legal defense, and at the same time preserve his right to appeal his termination, Pinkney requested the College to defer considering his removal until after his trial was concluded.

 This request, however, was denied. On April 29, 1974, the College informed Pinkney that his indictment warranted his dismissal and that his termination was effective May 3, 1974. Pinkney decided not to exercise his right to appeal the action immediately. *fn2" This decision was born of the fact that he did not wish to defend against the criminal charges then pending against him outside of the criminal forum. Also involved was the fact that Board Resolution 70-1, the regulation governing adverse actions taken against College employees, did not specify a time limit for noting appeals. *fn3"

 Plaintiff challenges his dismissal as (a) a breach of contract, (b) as a violation of regulations governing dismissals, (c) as an infringement on his fifth amendment rights of due process and against compelled self-incrimination and (d) as amounting to defamation of character. Plaintiff seeks reinstatement with back pay, correction of his personnel files and damages for breach of contract and defamation.

 II. Preliminary Considerations

 A. Plaintiff's Claims are not Barred by the Notice Requirement of 12 D.C. Code § 309 in that the Obligation to Furnish Notice to the District of Columbia did not Accrue until after Plaintiff had Exhausted his Administrative Remedies and Plaintiff Thereafter Provided Prompt and Adequate Notice.

 Under 12 D.C. Code § 309, *fn4" suits to recover "unliquidated damages" *fn5" against the District of Columbia are barred unless the claimant first provides written notice to the Mayor of the District concerning the circumstances surrounding his claim. Id. Furthermore, he must do so "within six months after the injury or damage was sustained." Id. Both parties agree that compliance with 12 D.C. Code § 309 is a necessary prerequisite to maintaining the present suit insofar as an award of damages is sought. The parties disagree, however, as to whether the requirement was in fact satisfied. The sole issue here concerns timeliness, the adequacy of the notices sent by plaintiff being uncontested. Defendants contend that Pinkney failed to provide timely notice of his claims against the District of Columbia in that his claims accrued for purposes of § 309 on the date he was dismissed and in that he failed to furnish formal notice of these claims until approximately fifteen months later. Plaintiff opposes this argument, rightly in the Court's view, on the grounds that the notice requirement did not arise until after the ensuing administrative proceedings had fully run their course and that thereafter plaintiff furnished the District with prompt notice of his claims. In the Court's judgment, a proper regard for the purposes served by § 309 compels the conclusion that plaintiff properly waited until after the outcome of his administrative appeals before providing formal notice of his claims.

 Section 309 distinguishes the District of Columbia from ordinary litigants and, apparently for reasons of economy, places the District at a litigative advantage by requiring potential claimants to put government officials on the early alert with regard to litigation likely to occur in the future. Ordinarily, notice of claims for unliquidated damages is governed by the longer statute of limitations. See 12 D.C. Code § 301. The concern embodied in § 309 is that District officials should be furnished with notice of potential claims soon enough ahead of time to permit prompt investigation of the underlying facts. In this way the District will be in a position to settle deserving claims at the earliest possible time, at a savings to the taxpayer, and to obtain evidence necessary to defend competently against undeserving claims, also conserving taxpayer resources. H.R. Rep. No. 2010, 72d Cong. 2d Sess. 1, 2 (1933). *fn6"

 Heedful of the purposes served by the provision, the courts have unhesitatingly applied § 309 to bar suits in instances where claimants failed to provide timely and adequate notice of their claims. In Miller v. Spencer, 330 A. 2d 250 (D.C. 1974), for example, a suit to recover damages for personal injuries arising out of an automobile accident was barred on the grounds that plaintiff failed to furnish adequate notice of the claim within six months of the occurrence. Similarly, in Hill v. District of Columbia, 345 A. 2d 867 (D.C. 1975), plaintiff sued for injuries sustained during a stay at a hospital operated by the District of Columbia. The suit was filed shortly after six months had run from the date of the incident and was barred for failure to meet the strict timeliness requirement imposed by § 309. These cases illustrate the general rule that the duty to provide notice under § 309 attaches as soon as plaintiff suffers actionable injury. This is so in the typical case because, once injury is sustained at the hands of municipal employees, plaintiff is immediately at liberty to take his claim to the courts. Nothing further needs to take place to render the claim ripe for judicial resolution.

 The situation is different however where plaintiff, because of the nature of his claim, is obliged under the exhaustion doctrine to present his grievance to appropriate authorities before bringing the matter to court. Where exhaustion is a necessary condition to bringing suit, plaintiff is under a duty to provide appropriate government administrators with the first opportunity to review and pass on his claim. Not until administrative processing is finally conducted is the matter ripe for judicial intervention. And thus not until then has the matter accrued for the purpose of triggering the duty to furnish timely notice of prospective litigation.

 The suggestion is made that tolling the notice requirement until after administrative remedies are exhausted somehow offends the design of § 309 to put the government on the early alert with regard to litigation likely to take place. In fact, just the opposite is true. Where a claimant is required to pursue his administrative remedies under the exhaustion doctrine, he necessarily will alert the government to the existence of a potentially litigable dispute. Furthermore, he typically will provide government officials with a detailed explanation of his grievance inasmuch as administrative processing requires full disclosure of the facts and circumstances underlying the claim, and not, as is the case with § 309, bare notice of it. In this way prompt resort to the administrative process in no way offends the aims of § 309. Far from doing that, pursuit of administrative remedies generously serves the purposes behind § 309.

 Defendants hasten to point out that Pinkney failed to timely pursue his administrative remedies by waiting until after the criminal charges against him were dismissed before appealing his removal to the College and Board. According to defendants, this delay was wholly unnecessary, unfairly deprived the District of prompt notice of the underlying dispute and thereby prejudiced the government in later defending against the claim. A close look, however, at the facts in this case reveals that the delay occasioned by the ongoing criminal proceedings was excusable under the circumstances and by no means prejudiced the government. The undisputed facts indicate that from the very outset appropriate authorities of the District of Columbia government were alerted to the circumstances behind Pinkney's dispute with the city. By letter dated April 15, 1974, the College informed Pinkney of his proposed removal on the basis of his indictment. *fn7" A copy of this communication was sent to staff persons at the Office of the Corporation Counsel, *fn8" the very office of the District government, it should be noted, that is charged with the responsibility of investigating and then defending claims brought against the city and government agencies. This is also the office that receives and processes notices sent to the Mayor of the District under § 309. Pinkney responded to this letter the very next day, objecting to his termination as unlawful and unmistakably expressing an intent to challenge his dismissal administratively as soon as the criminal charges against him, then set for trial in May, were concluded. *fn9" A copy of Pinkney's letter was also sent to staff persons at the Office of the Corporation Counsel. *fn10"

 Plaintiff took no further action until after the indictment against him was dismissed on December 18, 1974, after which date he promptly pursued his administrative remedies with authorities at the College, *fn11" and later with officials at the Board. *fn12" These efforts proved to be unavailing and Pinkney then furnished formal notice of his intention to take the case to court. *fn13" Throughout this period, the Corporation Counsel's Office remained actively involved in the matter to keep abreast of developments and to advise College and Board officials. *fn14"

 Against this background, the suggestion that plaintiff engaged in needless and prejudicial delay appears plainly unfounded. Indeed, the delay that resulted was quite understandable given the pending criminal charges against plaintiff; and it was moreover kept to a minimum and did not prejudice the government by deterring legal staff from monitoring developments and playing an active role in the case. It would simply be at odds with the facts to conclude otherwise.

 In the Court's view, then, there is no reasoned basis for barring plaintiff's claims on the grounds of untimeliness. *fn15"

 B. Defendants Fox and Russell are Not Liable to Plaintiff in Their Individual Capacity.

 The question of whether these defendants are individually liable to Pinkney turns on their participation -- or lack of it -- in the events leading up to the contested discharge. The undisputed facts reveal that neither defendant Fox nor defendant Russell was a factor in recommending to the College that Pinkney be dismissed on account of his indictment. Nor did either defendant take any part in reaching the final decision ordering Pinkney dismissed. Rather, the only connection between these defendants and plaintiff arose long after Pinkney was discharged. Following the dismissal of the criminal charges against him, Pinkney wrote defendant Russell, who, at the time, had recently assumed the presidency of Federal City College, seeking to reopen his case with a view ...

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