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McMillian v. Dist of Columbia

December 21, 2006

TONY MCMILLIAN, PLAINTIFF,
v.
DISTRICT OF COLUMBIA ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 11

MEMORANDUM OPINION

GRANTING DEFENDANT TIPPETT'S MOTION TO DISMISS

I. INTRODUCTION

This employment discrimination case comes before the court on defendant Interim Fire Chief Thomas Tippett's motion to dismiss. The court previously dismissed the suit against defendants District of Columbia ("D.C." or the "District") and the D.C. Fire & Emergency Medical Services Department ("EMS"). The plaintiff sues defendant Tippett (the "defendant") in his individual and official capacity. The defendant moves to dismiss the complaint, arguing that the plaintiff has failed to state a claim upon which relief can be granted. Because the plaintiff cannot sue the defendant in his individual capacity and because the court has already dismissed the official-capacity suit, the court grants the defendant's motion to dismiss.

II. BACKGROUND

A. Factual Background

The plaintiff has been an employee of EMS since June 1977 and has served in many capacities, including that of Compliance Officer. Compl. ¶¶ 17, 18. "As Compliance Officer [the] plaintiff represented the District's position in a claim of racial discrimination filed by a white male." Id. ¶ 25. The plaintiff alleges that the three defendants engaged in discriminatory employment practices against him based on his race and based on a critical report that he wrote while serving as a Compliance Officer for EMS. Id. ¶¶ 10, 31, 32, 33. In this report, the plaintiff alleged that the white male's claim was unfounded and criticized EMS' settlement of that claim. Id. ¶ 31.

After knowledge of the report's contents spread, the "plaintiff began experiencing difficulties he had never experienced in his prior years of service." Id. ¶ 33. The plaintiff alleges that he was demoted, id. ¶¶ 38, 40, and accused of sexual harassment on a number of occasions, id. ¶¶ 56, 68, 64. The plaintiff sues the District, EMS, and Tippett for discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000-e et seq., and for intentional infliction of emotional distress. Compl. ¶¶ 2-4, 14, 69-86.

B. Procedural Background

On January 7, 2005, defendants D.C. and EMS filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defs. District of Columbia and EMS's Motion to Dismiss ("District's Mot. to Dismiss") at 5.*fn1 In their motion, the District and EMS expressly stated that they do "not represent Tippett but reserve[] the right to do so at a later time." Id. at 1 n.1. The court granted the District's motion to dismiss on May 2, 2005. Afterwards, the plaintiff moved the court to alter its judgment on May 11, 2005, and on that same day, defendant Tippett moved to dismiss the complaint.

The court denied the plaintiff's motion to alter or amend judgment on December 13, 2005. The court also denied, without prejudice, defendant Tippett's motion to dismiss because the motion was untimely and the court had not granted defendant Tippett leave to late file.

On December 23, 2005, defendant Tippett moved for leave to late file his motion to dismiss. The court granted that motion, and the court now turns to ...


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