The opinion of the court was delivered by: GREEN
This matter is before the Court on defendants' motion to dismiss or for summary judgment ("Defendants' Motion to Dismiss"), plaintiff's opposition thereto, defendants' reply brief, and the entire record herein. For the reasons given below, the Court grants defendants' motion to dismiss.
Plaintiff Liles was employed as a Smithsonian Institution security guard from August 1976 to September 1977 and again from July 1979 to September 1982. At approximately 2:35 p.m., on August 3, 1982, Mrs. Mary Vorhies complained to Capt. James W. Greer that her 10-year old sister, Dawn Herrington, had been sexually molested by a security guard during her visit to the National Museum of American Art ("NMAA"). Defendants' Motion to Dismiss, Exhibit 1 ("Exhibit 1") at 1. The child explained,
that while she was touring the building alone she had been approached by a Guard on the second floor of NMAA, on the northeast side of the museum, who questioned her if she was alone, or with some relatives visiting the museum. She replied she was by herself. While looking thru Gallery 2-K on the second floor, northeast side of NMAA, the Guard asked Miss Herrington if she would like to see the inside of a locked room in the Gallery, at which time the Guard opened the wire closet door.
Miss Herrington stated she only looked into the room from the doorway, and observed a liquor bottle and a can of Pepsi Cola sitting on a table, but did not enter into the room.
At this point Miss Herrington stated the Guard felt parts of her body with his hands. When this occurred she stated that she backed away and left the area, came to the first floor and called her sister, Mrs. Mary Vochies [sic].
Capt. Greer contacted other security and investigative personnel in the Smithsonian after receiving the complaint. An investigation was initiated which confirmed Ms. Herrington's description of the inside of the locked closet. The investigation also determined that plaintiff was one of two officers on duty in Gallery 2-K of the museum at the time of the incident. Assignment records indicated that officers Walter Shepherd and plaintiff were assigned to that particular room. However, the victim stated that Officer Shepherd was "not the person but that she had seen Shepherd talking to her molester." Defendants' Motion to Dismiss, Exhibit 3 ("Exhibit 3") at 1.
A preliminary hearing was held before Superior Court Judge Carlisle Pratt on August 17, 1982. Subsequently, plaintiff was indicted by a grand jury on November 3, 1982, and charged with a violation of section 3501(a). Following a trial in April 1984, plaintiff was acquitted on April 12, 1984.
Shortly after being placed on administrative leave, the Smithsonian proposed that plaintiff be suspended and removed from his position in the federal service. The proposal explained to plaintiff that
as a Museum Protection Officer, one of [his] responsibilities [was] to enforce law and order and to convey an image of trust and safety. Actions such as [the described molestation incident] betrayed this image and [could not] be tolerated. In addition [his] actions [were] prejudicial to the image and reputation of the Smithsonian and the U.S. Government.
Defendants' Motion to Dismiss, Exhibit 8 ("Exhibit 8") at 1. The Smithsonian notified plaintiff of the proposed suspension and removal and offered him ...