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September 24, 1990

DISTRICT OF COLUMBIA, et al., Defendants

The opinion of the court was delivered by: HOGAN


 Before the Court is defendants' motion to dismiss or, in the alternative, for summary judgment on Counts II through VII of plaintiff's amended complaint. Having considered the motion and supporting affidavits, the opposition and supporting affidavits, the hearing held on September 5, 1990, and the reasons set forth below, the Court shall deny defendants motion with respect to Counts II and IV, and shall grant defendant's motion with respect to Counts III, V, VI, and VII.


 On July 2, 1987, The United States Department of Health and Human Services hired David Russell, a white male, as a temporary fire fighter at St. Elizabeths Hospital (SEH). Mr. Russell's temporary appointment ended on September 30, 1987, the day before control of SEH was transferred from the United States to the District of Columbia pursuant to the St. Elizabeths Hospital and District of Columbia Mental Health Services Act, Pub. L. No. 98-621, 98 Stat. 3369 (codified at 24 U.S.C. § 225 et seq. (1988)). Since the transfer, the Commission on Mental Health Services (CMHS) has operated SEH. On October 1, 1987, the CMHS hired Mr. Russell as a temporary fire fighter for a term of 12 months, to expire September 30, 1988. On September 29, 1988, CMHS hired Mr. Russell for another term appointment, this time for 13 months, to expire October 25, 1989. A "Personnel Action" form was completed for each of Mr. Russell's appointments.

 In the spring of 1989, the CMHS made a policy decision not to extend term appointments without competition. Sometime after this decision was made, a vacancy announcement was posted for several CMHS fire fighter positions. *fn1" The announcement indicated, rather ambiguously, an "Opening Date" of June 19, 1989, a "Closing Date" of August 19, 1989, and an "If 'Open Until Filled,' First Screening Date" of June 2, 1989 and every two weeks thereafter. Defendants have not explained how a vacancy announcement can at once have a closing date and be "open until filled." At any rate, Mr. Russell submitted his application for one of the posted positions on July 26, 1990, well before the closing date. Mr. Russell was not selected for any of the vacant fire fighter positions. Defendants now assert that by the time Mr. Russell filed his application on July 26, 1990, all of the fire fighter positions had been filled. Defendants' Memorandum in Support of Motion to Dismiss or for Summary Judgment (Defendants' Memorandum) at 5. On October 13, 1989, the Commissioner of the CMHS, Robert A. Washington, Ph.D., wrote to Mr. Russell advising him that his term appointment would expire on October 25, 1989 and would not be renewed. Mr. Russell's last day on the job was October 25, 1989.

 During his tenure as a fire fighter at SEH, Mr. Russell played an active role in reporting what he and other fire fighters perceived as "problems" in the transition between federal and local control of SEH. Following the transfer, the fire fighters working at SEH became employees of the CMHS although the District of Columbia Fire Department (DCFD) was given administrative responsibility for them. In August 1989 this relationship ended and administrative control reverted to the CMHS. Although the Court does not at this point know the full extent of Mr. Russell's reporting activities, it is aware that Mr. Russell was in contact with the news media and various congressional offices. He also testified before the CMHS and the House Appropriations Committee for the District of Columbia. In addition, Mr. Russell filed two petitions with the District of Columbia Public Employee Relations Board concerning a possible change of bargaining unions for the fire fighters.

 A. Plaintiff's § 1981 Claims

 Defendants have moved to dismiss Counts II and III of plaintiff's amended complaint, which allege racial discrimination (Count II) and retaliation (Count III) in violation of 42 U.S.C. § 1981. Defendants move to dismiss on two grounds: that Mr. Russell fails to state a claim upon which relief can be granted and that after Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), § 1981 does not provide relief for the discriminatory and retaliatory action that Mr. Russell alleges. The Court will consider these arguments in turn.

 1. Failure to State a Claim

 The United States Supreme Court long ago established the level of pleading required for a complaint to survive a motion to dismiss. In Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) the Supreme Court held that a complaint must provide the defendants with "fair notice of what the plaintiff's claim is and the grounds upon which it rests." The federal courts of appeals have expounded upon this standard in civil rights cases, see e.g., Albert v. Carovano, 824 F.2d 1333, 1341 (2d Cir. 1987) (requiring more than "mere naked assertions" of discriminatory intent); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979) (requiring more than simple conclusions); however, the primary requirement remains that the allegations in a civil rights complaint must "be sufficiently precise to put defendants on notice of the nature of the claim and enable them to prepare a response . . . ." Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 29 (D.C. Cir. 1984), cert. denied, Brennan v. Hobson, 470 U.S. 1084, 85 L. Ed. 2d 142, 105 S. Ct. 1843 (1985).

 Mr. Russell's complaint meets this standard. It alleges that the defendants "denied him promotion, transfer and career advancement opportunities, have relieved him of duties and responsibilities previously assigned him, have falsely charged him with misconduct, and threatened and ultimately brought about his discharge" on account of his race and in retaliation for his protests against racial discrimination. Amended Complaint at 4-6. Mr. Russell further details the alleged discriminatory conduct in his opposition to defendants' motion and accompanying affidavits (Plaintiff's Opposition). Clearly, defendants were put on "notice of the nature of the claim" and have been able "to prepare a response." Indeed, they were not only able to prepare a response, but also a ...

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