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MULHALL v. DISTRICT OF COLUMBIA

July 12, 1990

KYLE MULHALL, Plaintiff,
v.
THE DISTRICT Of COLUMBIA, et al., Defendants



The opinion of the court was delivered by: SPORKIN

 STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE

 Plaintiff is a former attorney with the Civil Division, Child Support Unit (now Child Support Section) (CSS) of the District of Columbia Office of Corporation Counsel (OCC). Defendants are the District of Columbia, Frederick D. Cook, in his official capacity as D.C. Corporation Counsel, and Arlene Robinson, in her individual and in her official capacity as Chief of the CSS. Pursuant to 42 U.S.C. § 1983, plaintiff alleges that defendants, acting under color of D.C. law, penalized him for exercising his free speech rights in violation of the First and Fourteenth Amendments to the United States Constitution. Plaintiff also asserts that defendants violated his constitutional right to due process in violation of 42 U.S.C. § 1983. In addition to these federal claims, plaintiff has alleged several causes of action based on common law. Plaintiff alleges breach of contract, and wrongful discharge in violation of D.C. public policy. Plaintiff sues defendant Robinson in her individual capacity for intentional interference with the contractual relationship that allegedly existed between plaintiff and the District of Columbia. Plaintiff seeks $ 50,000 in compensatory damages for the breach of contract claim, as well as $ 50,000 in compensatory damages, and $ 500,000 in punitive damages for each of the remaining four counts, plus costs.

 Presently before this Court is defendants' Motion to Dismiss the Complaint for Failure to State a Claim pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alternative, for Summary Judgment pursuant to Fed. R. Civ. P. 56 or, in the alternative, for Judgment on the Pleadings pursuant to Fed. R. Civ. P. 12(c). Both parties submitted exhibits, and plaintiff filed affidavits.

 I. FACTUAL BACKGROUND

 Plaintiff served as an attorney for the OCC in the CSS from June 22, 1987, until July 21, 1988. The document that memorializes plaintiff's employment with the District of Columbia specifies that plaintiff's term of employment was to commence June 22, 1987, and was not to exceed July 21, 1988 (shown on the form as "NTE 7/21/88"). *fn1"

 Plaintiff alleges that his problems at CSS stemmed from a dispute that arose during his assignment to the case of Philpot v. Thomas [" Philpot "]. In October of 1987, *fn2" Judith Hannah, an OCC attorney, handled the Philpot case for the District of Columbia. Ms. Philpot, a resident of Georgia and the former spouse of George Thomas III, a D.C. resident, petitioned the D.C. Superior Court to enforce child support payments for their minor daughter pursuant to the Uniform Reciprocal Enforcement of Support Act. According to plaintiff, Mr. Thomas was an acting budget director of D.C. who maintained a close relationship with Mayor Marion Barry. See Plaintiff's Complaint ["Pl. Com."] para. 14-16.

 During a hearing to resolve the Philpot case, Ms. Hannah, of the OCC, refused a settlement of $ 300.00 in monthly child support payments which was offered by Mr. Thomas' attorney, Leonard Long. See Pl. Com. para. 17. Ms. Hannah informed Mr. Long that application of Superior Court Child Support Guidelines indicated that monthly child support payments of approximately $ 1,000.00 would be appropriate. See Pl. Com. para. 18.

 After the hearing, plaintiff contends that Mr. Thomas complained to defendant Cooke who then called defendant Robinson to inquire why the $ 300.00 settlement offer was not accepted. In response to an inquiry made by defendant Cooke, defendant Robinson personally phoned Ms. Philpot to confirm that she only sought $ 300.00 and to advise that she might be entitled to more money if she wanted OCC to seek a higher sum. See Def. Mem. at 14; Def. Ex. 8, 4. At defendant Robinson's request, Ms. Philpot submitted a letter that expressly stated that she was aware that an amount greater than $ 300.00 was available, but that the $ 300.00 amount was satisfactory. See Def. Ex. 4, 8. Subsequently, Ms. Philpot executed an affidavit to the same effect. See Def. Ex. 10.

 Defendant Robinson then removed Ms. Hannah from the case and assigned it to another OCC attorney, Marsha Browne. See Pl. Com. para. 19. On the next scheduled hearing date, Mr. Long produced Ms. Philpot's affidavit which evidenced her willingness to accept $ 300.00 in monthly child support payments. *fn3" See Pl.Com. para. 20; Def. Ex. 10. At some point thereafter, defendants assigned plaintiff, Kyle Mulhall, to replace Ms. Browne as counsel for OCC. See Pl. Com. para. 21.

 On November 12, 1987, defendant Robinson instructed plaintiff to "sign off" on the settlement of $ 300.00. See Pl. Com. para. 23. Plaintiff believed that, with defendant Robinson's knowledge, Mr. Long had violated Disciplinary Rule 7-101(A)(1) of the Code of Professional Responsibility ["CPR"] by "advising" Ms. Philpot to sign the affidavit, thereby agreeing to the $ 300.00 figure. See Pl. Com. para. 22-23. Plaintiff believed that the proposed settlement "had been engineered through political maneuvering" and "was not in the best interests of the OCC's client, Ms. Philpot. . . ." *fn4" See Id. at P 24. Plaintiff further believed that Mr. Thomas, allegedly a friend of Mayor Marion Barry, used political influence to get defendant Cooke to ensure that the $ 300.00 figure was accepted. See Pl. Com. para. 19. Consequently, plaintiff "refused to sign off on the order but indicated to the court that Defendant Robinson had approved the terms of the settlement." See Id.; Def. Ex. 7.

 Later that day, defendant Robinson allegedly advised plaintiff that due to his handling of this "political case," she anticipated receiving a complaint from her superior, defendant Cooke. See Pl. Com. para. 25. Defendants viewed plaintiff's refusal to sign off on the order as an "example of insubordination and poor judgment." See Def. Mem. at 19, 2, 11 n. 2.

 On November 13, 1987, plaintiff sought advice from the D.C. Office of Bar Counsel concerning Mr. Long's possible violations of the CPR. Plaintiff prepared a formal complaint against Mr. Long (See Def. Ex. 5, 6), however he inadvertently failed to mail it. See Def. Mem. at 6; Def. Ex. 6. Upon learning of these events, defendant Robinson was upset with plaintiff's decision to contact Bar Counsel without her knowledge. She rebuked plaintiff for contacting Bar Counsel and allegedly remarked that defendant Cooke was "deeply involved" in the "political" nature of the Philpot case. See Pl. Com. para. 27. According to plaintiff, defendant Robinson ordered him to sever all contact with Ms. Philpot and warned that his actions "could have serious consequences." See Id. P 27, 29.

 Plaintiff further alleges that, after he was removed from the Philpot case, defendant Robinson "began to openly humiliate [him]," threatened retaliatory action, and "openly criticized" him on the basis of "insupportable allegations" of shoddy work. See Pl. Com. para. 30-31. Plaintiff enumerates several instances when defendant Robinson allegedly treated him unfairly. *fn5" Specifically, plaintiff alleges that when he reported late to work due to illness defendant Robinson docked him two hours sick leave rather than extending to him the customary practice of making up the time by working late; she denied him supervisory assistance by refusing to speak with him during January and February of 1988; plaintiff was "repeatedly denied use of a secretary"; and "plaintiff was also the last attorney to receive the assistance of a paralegal." See Id. P 32-33, 36. Toward the end of February, 1988, defendant Robinson allegedly publicly chastised plaintiff for filing a "Motion for Extension of Time," even though this procedure was frequently used by many OCC divisions. Plaintiff then informed defendant Robinson of his intent to seek other employment. She allegedly responded, "Not with the District government you're not!" See Id. P 34-35.

 In May of 1988, defendant Robinson gave plaintiff a "satisfactory" evaluation. See Id. P 37; Def. Ex. 12. Plaintiff asserts that, contrary to D.C. Personnel Regulations, no one informed him of his right and procedure to appeal this evaluation. See Pl. Com. para. 39. On June 9, 1988, plaintiff received a dismissal letter written by defendant Robinson informing him that his "TERM appointment" would not be extended. See Pl. Com. para. 42; Def. Ex. 2. On June 21, 1989, plaintiff commenced this action. Plaintiff asserts that his First and Fourteenth Amendment rights were "chilled" due to his "sincere, professional and conscientious expression to further and effectuate specific processes and procedures within the OCC." See Pl. Com. para. 46. Plaintiff further asserts that defendants met his efforts with acts of personal retaliation which culminated in his "malicious and wrongful discharge" and "lost specific future employment opportunities with the local government, . . . ." Id.

 Since defendants answered plaintiff's complaint prior to filing their motion to dismiss the complaint for failure to state a claim upon which relief can be granted, under Fed. R. Civ. P. 12(b)(6), this motion is untimely. See Fed.R.Civ.P. Rule 12(b), 28 U.S.C.A. (1990) ("A motion making any of these defenses (including "(6) failure to state a claim upon which relief can be granted") shall be made before pleading if a further pleading is permitted.").

 II. STANDARD FOR SUMMARY JUDGMENT

 Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(c). In reviewing a motion for summary judgment the court must consider the pleadings, related documents and evidence in a light most favorable to the non-moving party. Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, 477 U.S. 242, 249-250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Defendants' presentation of the facts differs from plaintiff's. However for purposes of the motion for summary judgment, the facts are construed in a light ...


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