The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiff Angel Medina, currently a Captain in the District of Columbia Metropolitan Police Department ("MPD"), brought suit against the District of Columbia, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981 and 1983, the Fifth Amendment, and the D.C. Human Rights Act. Captain Medina claims that the District of Columbia engaged in unlawful and discriminatory employment practices based on his race and national origin, retaliated against him, and deprived him of his right to due process. Pending before the Court is plaintiff's motion for partial summary judgment on Count I of his Second Amended Complaint and defendant's renewed motion to dismiss or, in the alternative, for summary judgment. After careful consideration of the motions, responses and replies thereto, applicable law, and the entire record, the Court denies plaintiff's motion for partial summary judgment and grants in part and denies in part defendant's motion.
Plaintiff, who is of Hispanic origin, became a police officer in the District of Columbia Metropolitan Police Department ("MPD") in 1985. In early 1991, plaintiff was reassigned as an Investigator and then promoted to Sergeant on June 16, 1991.
In September 1992, plaintiff, then a Sergeant in the MPD's Office of Internal Affairs ("OIA"), participated in the MPD's 1992 Promotional Examination Process. Composed of two phases, plaintiff passed the first written phase, ranking 18th out of the 323 candidates who vied for the rank of Lieutenant. Accordingly, he was able to proceed to the second phase of the examination process -- an assessment phase.*fn2 After the second phase, however, plaintiff's ranking dropped to 65 on a list of 79 candidates.
In May 1993, plaintiff filed a complaint against the MPD with the Department of Human Rights ("DHR").*fn3 In his complaint -- DHR Complaint No. 93-210-DC (CN) ("first DHR complaint")--plaintiff alleged that the MPD had denied him the promotion from Sergeant to Lieutenant during the 1992 Promotional Examination Process on the basis of his race and national origin. On October 21, 1994, the DHR issued a Letter of Determination finding probable cause. Less than a month after the DHR's determination and order, plaintiff was promoted from Sergeant to the rank of Lieutenant based on his results on the 1994 promotional examination.
On September 19, 1995, the DHR determined that the MPD had discriminated against plaintiff on the basis of race and national origin and issued a Summary Determination and Order. This order required the District of Columbia to award plaintiff differential back pay for the period between December 1, 1992 and November 4, 1994, including any overtime to which he was entitled, and to ensure that plaintiff was free from any future reprisals or retaliatory actions. See Summary Determination and Order (Sept. 19, 1995), Ex. 3 to Pl.'s Mot. for Partial Summ. J. In April 2002, the Director of the D.C. Office of Human Rights ("OHR" -- successor to the Department of Human Rights) sent a letter to the MPD's General Counsel advising him that the September 19, 1995 Summary Determination and Order represented "the final District Government administrative decision with which your Department is obligated to comply." Letter from Charles Holman to Terrence Ryan (Apr. 22, 2002), Ex. 5 to Pl.'s Mot. for Partial Summ. J.
Sometime in October 1994, before plaintiff's promotion took effect, plaintiff and Captain Stanley Wigenton had a discussion in which plaintiff indicated that he would like to remain in OIA after his promotion to Lieutenant. Plaintiff was informed by Sonya Proctor, then Director of OIA, that the Chief of Police had indicated that the MPD "had to send people out to the streets." Def.'s Statement of Material Facts ¶ 46. Plaintiff was reassigned to street duty.
In February 1995, plaintiff filed DHR Complaint No. 95-151-DC (CN) against the MPD ("second DHR complaint"), alleging that his transfer from OIA to street duty was discriminatory based upon his race and national origin. In January 1997, the DHR issued a finding of no probable cause with respect to the second DHR complaint. In February 1997, plaintiff requested that the City Administrator reconsider the DHR finding, but the director of the DHR informed plaintiff that the rules for D.C. government complaints had been amended in August 1996 to eliminate appeals to the D.C. administrator. The DHR director also informed plaintiff that if he wished to request reconsideration, he should submit an application, indicating where the DHR misapplied the law or misstated the facts, or if there was new evidence for submission. Plaintiff chose not to re-file a request for reconsideration.
In 1996, plaintiff had very brief conversations with senior officers in the Homicide Division and the Criminal Investigations Division regarding his desire to transfer to those divisions should positions become available. Plaintiff was not transferred to either division. In 1997, plaintiff attempted to meet with Commander Boggs of the Narcotics and Special Investigation Division without an appointment to discuss his interest in transferring to that division. Commander Boggs asked plaintiff to call back and schedule an appointment with her, but he did not do so. Plaintiff was not transferred to the Narcotics and Special Investigation Division.
In April 1997, plaintiff met with Inspector Lloyd Coward, then director of OIA, and Captain Patricia Alexander to express his interest in a transfer back to OIA. A few days later, plaintiff emailed his resume to Captain Alexander. In late 1997 or early 1998, Inspector Coward was replaced by Inspector Kim Dine. In February 1998, a teletype was issued listing the individuals transferred to OIA. Plaintiff was not on the list. When plaintiff asked why he had not been transferred to OIA, he was told by Inspector Dine that Dine was not aware that plaintiff had ever expressed any interest in the transfer. Captain Patricia Alexander, the individual to whom plaintiff initially expressed his interest, admitted that she had forgotten to inform Inspector Dine of plaintiff's interest in OIA. Inspector Dine then offered plaintiff a position with the Audit and Compliance Division, but plaintiff did not respond to her offer.
In October 1998, plaintiff filed his third and last complaint with the DHR -- Complaint No. 99-011-DC (CN) ("third DHR complaint") -- alleging that he had not been chosen for a transfer to a position in OIA because of his race and national origin. On November 1, 1999, the DHR issued a finding of probable cause. After the Letter of Determination was issued, the matter was not settled nor referred to the Commission on Human Rights for a public hearing. Second Am. Compl. ¶ 101. On January 5, 2000, the EEOC issued a right-to-sue letter based on all three of plaintiff's DHR complaints.
Throughout 2000, plaintiff applied for several other transfers but was not selected. In May 2000, he applied for Lieutenant positions with the Gang Task Force and with the Family Violence Child Protection Unit, but was not selected for either position. In September 2000, plaintiff hand-delivered an application for the Lieutenant position with the Force Investigation Team, but was told that the position had already been filled by the time he applied.
Plaintiff successfully participated in the 2000 Promotional Examination Process. He was promoted from Lieutenant to Captain as a result of that exam.
On November 2, 2001, plaintiff was indicted in the United States District Court for the District of Columbia for false statements, conspiracy, and aiding and abetting, all relating to a real estate transaction initiated primarily by his wife. Second Am. Compl. ¶ 141. On December 29, 2001, plaintiff was placed on suspension without pay for conduct unbecoming an officer pending resolution of the criminal matter. Id. ¶¶ 150-51. At plaintiff's criminal trial in May 2002, two of the charges were dismissed by the court at the close of evidence and the jury acquitted plaintiff on the remaining charge. Id.
¶¶ 152-54. The judgment of acquittal was filed on May 8, 2002. Id. ¶ 154.
On May 15, 2002, plaintiff's representative urged Chief Ramsey to restore plaintiff to full duty and full pay. Id.
¶ 161. Plaintiff continued to remain on leave without pay status until September 13, 2002, when he was placed on non-contact duty. Id. ¶ 158.
On October 29, 2002, plaintiff filed his Second Amended Complaint in this Court.*fn4 In his Second Amended Complaint, plaintiff alleges ten counts total, including violations of the Due Process Clause of the United States Constitution, Title VII, 42 U.S.C. §§ 1981 and 1983, and the D.C. Human Rights Act. Specifically, plaintiff alleges the following: (1)denial of due process in failing to enforce DHR's September 19, 1995 Summary Determination and Order; (2) denial of due process in failing to hold a hearing on plaintiff's second DHR complaint before making a finding of no probable cause; (3) violation of Title VII and 42 U.S.C. § 1981 based on transfer from OIA to street duty after 1994 promotion; (4) violation of Title VII and 42 U.S.C. § 1981 based on denial of plaintiff's request to transfer back into OIA; (5) retaliation in violation of 42 U.S.C. § 1981 and the D.C. Human Rights Act based on failure to transfer plaintiff back to OIA; (6) denial of due process in failing to enforce the November 1, 1999 Letter of Determination finding probable cause; (7) retaliation in violation of 42 U.S.C. § 1981 based on repeated denial of transfer requests; (8) denial of due process in failing to reinstate plaintiff within thirty days of his acquittal; (9) retaliation in violation of 42 U.S.C. § 1981 based on refusal to return plaintiff to full duty and full pay within thirty days of his acquittal; and (10) discrimination and retaliation in violation of 42 U.S.C. § 1981 based on alleged denials of plaintiff's requests to participate in the Take Home Cruiser Program and an alleged break in to plaintiff's office.
Plaintiff has filed a partial motion for summary judgment on Count I of his Second Amended Complaint. Defendant has filed a renewed motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must present "enough facts to state a claim to relief that is plausible on its face," and "above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965, 1974 (2007). The Court will accept as true all factual allegations in the complaint, and give the plaintiff the benefit of all inferences that can be drawn from the facts alleged. See id. at 1965; Atchinson v. Dist. of Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996). If, on a 12(b)(6) motion, matters outside the pleadings are presented to and not excluded by the Court, then the motion to dismiss shall be treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex, 477 U.S. at 323.
In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324.
In this case, the parties have engaged in extensive discovery and have submitted numerous exhibits in support of their motions that have been considered by the Court as to Counts I-VII and X of the Complaint. Accordingly, the Court will treat defendant's motion as a motion solely for summary judgment as to those Counts. As for Counts VIII and IX, defendant appears to only be moving to dismiss these claims and not moving for summary judgment given that defendant has not included the events underlying these claims in its statement of material facts and neither party cites to record evidence with respect to these claims. The parties have not submitted, and the Court has not considered, matters outside the pleadings with respect to these claims. Accordingly, the Court will treat defendant's motion as a motion to dismiss with respect to Counts VIII and IX of the Second Amended Complaint.
Plaintiff alleges due process violations, discrimination, and retaliation. Defendant has moved to dismiss or for summary judgment on all claims. Plaintiff has moved for partial summary judgment on Count I. As discussed below, the Court denies plaintiff's motion for partial summary judgment on Count I and grants defendant's motion as to Counts I, II, VI, VII, and VIII. The Court also grants defendant's motion as to the portion of Count X alleging retaliation based on the office break in. However, the Court denies defendant's motion as to Counts III, IV, V, IX, the portion of X alleging discrimination as to both events, and the portion of X alleging retaliation based on the denial of plaintiff's participation in the Take Home Cruiser Program.
In Counts I, II, VI, and VIII of his Second Amended Complaint, plaintiff alleges violations of the Due Process Clause of the Fifth Amendment. Count I involves a claim for denial of due process in failing to enforce DHR's September 19, 1995 Summary Determination and Order awarding plaintiff back pay and declaring that he should not be subject to retaliation or reprisals. In Count II, plaintiff asserts that defendant denied him due process by failing to hold a hearing on his second DHR complaint before finding no probable cause. Count VI involves an alleged denial of due process based on defendant's failure to enforce the November 1, 1999 Letter of Determination finding probable cause as to plaintiff's third DHR complaint. In Count VIII, plaintiff alleges a denial of due process based on the MPD's failure to reinstate plaintiff within thirty days of his acquittal of criminal charges. Other than as to Count I, plaintiff does not specify whether he is bringing substantive or procedural due process claims so the Court will analyze his claims under both.*fn5
The Fifth Amendment to the United States Constitution prevents the deprivation of life, liberty, or property without due process of law. U.S. Const. amend. V. Due process falls into two categories: substantive and procedural. Individuals are not entitled to either form of due process in cases alleging deprivation of property, however, unless they have a constitutionally protected property interest. Washington Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 36 (D.C. Cir. 1997). Property interests are not created by the Constitution. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). "Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. A legitimate claim of entitlement to a benefit and a legal cause of action both constitute a property interest. Id.; Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982).
In its motion, defendant does not challenge plaintiff's claim that he has a property interest in the cause of action arising from his first DHR complaint or DHR's September 19, 1995 Summary Determination and Order, the cause of action stemming from his second DHR complaint, the cause of action arising from plaintiff's third DHR complaint and the November 1, 1999 Letter of Determination, or his alleged entitlement to reinstatement within thirty days of his acquittal. Moreover, in response to plaintiff's motion for partial summary judgment, defendant expressly concedes that plaintiff has a property interest in the September 19, 1995 Summary Determination and Order. The Court finds that plaintiff ...